II 

111TH CONGRESS 

1ST SESSION S. 1686 

To place reasonable safeguards on the use of surveillance and other authorities 

under the USA PATRIOT Act, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 17, 2009 

Mr. FEINGOLD (for himself, Mr. DURBIN, Mr. TESTER, Mr. UDALL of New 

Mexico, Mr. BINGAMAN, Mr. SANDERS, Mr. AKAKA, Mr. WYDEN, Mr. 

MENENDEZ, and Mr. MERKLEY) introduced the following bill; which was 

read twice and referred to the Committee on the Judiciary 

A BILL 

To place reasonable safeguards on the use of surveillance 

and other authorities under the USA PATRIOT Act, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Judicious Use of Sur5 veillance Tools In Counterterrorism Efforts Act of 2009’’ 

6 or the ‘‘JUSTICE Act’’. 

7 SEC. 2. TABLE OF CONTENTS. 

8 The table of contents for this Act is as follows: 

Sec. 1. Short title. 


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Sec. 2. Table of contents. 

TITLE I—REASONABLE SAFEGUARDS TO PROTECT THE PRIVACY 

OF AMERICANS’ RECORDS 

Sec. 101. National security letter authority. 

Sec. 102. Judicial review of National Security Letters. 

Sec. 103. National Security Letter compliance program and tracking database. 

Sec. 104. Public reporting on National Security Letters. 

Sec. 105. Emergency disclosures. 

Sec. 106. Least intrusive means. 

Sec. 107. Privacy protections for section 215 business records orders. 

Sec. 108. Technical and conforming amendments. 

TITLE II—REASONABLE SAFEGUARDS TO PROTECT THE PRIVACY 

OF AMERICANS’ HOMES 

Sec. 201. Limitation on authority to delay notice of search warrants. 

TITLE III—REASONABLE SAFEGUARDS TO PROTECT THE 

PRIVACY OF AMERICANS’ COMMUNICATIONS 

Sec. 301. Limitations on roving wiretaps under Foreign Intelligence Surveillance Act. 

Sec. 302. Privacy protections for pen registers and trap and trace devices. 

Sec. 303. Repeal of telecommunications immunity. 

Sec. 304. Prohibition on bulk collection under FISA Amendments Act. 

Sec. 305. Prohibition on reverse targeting under FISA Amendments Act. 

Sec. 306. Limits on use of unlawfully obtained information under FISA 

Amendments Act. 

Sec. 307. Privacy protections for international communications of Americans 

collected under FISA Amendments Act. 

Sec. 308. Clarification of computer trespass authority. 

TITLE IV—IMPROVEMENTS TO FURTHER CONGRESSIONAL AND 

JUDICIAL OVERSIGHT 

Sec. 401. Public reporting on the Foreign Intelligence Surveillance Act. 

Sec. 402. Use of Foreign Intelligence Surveillance Act materials. 

Sec. 403. Challenges to nationwide orders for electronic evidence. 

TITLE V—IMPROVEMENTS TO FURTHER EFFECTIVE, FOCUSED 

INVESTIGATIONS 

Sec. 501. Modification of definition of domestic terrorism. 

Sec. 502. Clarification of intent requirement. 


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1 TITLE I—REASONABLE SAFE2 GUARDS TO PROTECT THE 

3 PRIVACY OF AMERICANS’ 

4 RECORDS 

5 SEC. 101. NATIONAL SECURITY LETTER AUTHORITY. 

6 (a) NATIONAL SECURITY LETTER AUTHORITY FOR

7 COMMUNICATIONS SUBSCRIBER RECORDS.— 

8 (1) IN GENERAL.—Section 2709 of title 18, 

9 United States Code, is amended to read as follows: 

10 ‘‘§ 2709. National Security Letter for communications 

11 subscriber records 

12 ‘‘(a) AUTHORIZATION.— 

13 ‘‘(1) IN GENERAL.—The Director of the Fed14 eral Bureau of Investigation, or a designee of the 

15 Director whose rank shall be no lower than Deputy 

16 Assistant Director at Bureau headquarters or Spe17 cial Agent in Charge in a Bureau field office, may 

18 issue in writing and cause to be served on a wire or 

19 electronic communications service provider a Na20 tional Security Letter requiring the production of— 

21 ‘‘(A) the name of a customer or subscriber; 

22 ‘‘(B) the address of a customer or sub23 scriber; 

24 ‘‘(C) the length of the provision of service 

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1 cluding start date) and the types of service used 

2 by the customer or subscriber; 

3 ‘‘(D) the telephone number or instrument 

4 number, or other subscriber number or identi5 fier, of a customer or subscriber, including any 

6 temporarily assigned network address; 

7 ‘‘(E) the means and sources of payment 

8 for service by the provider (including any credit 

9 card or bank account number); 

10 ‘‘(F) information about any service or mer11 chandise orders relating to the communications 

12 service of a customer or subscriber, including 

13 any shipping information and vendor locations; 

14 and 

15 ‘‘(G) the name and contact information, if 

16 available, of any other wire or electronic com17 munications service providers facilitating the 

18 communications of a customer or subscriber. 

19 ‘‘(2) LIMITATION.—A National Security Letter 

20 issued under this subsection may not require the 

21 production of local or long distance telephone 

22 records or electronic communications transactional 

23 information not listed in paragraph (1). 

24 ‘‘(b) REQUIREMENTS.— 


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1 ‘‘(1) IN GENERAL.—A National Security Letter 

2 shall be issued under subsection (a) only where— 

3 ‘‘(A) the records sought are relevant to an 

4 ongoing and authorized national security inves5 tigation (other than an assessment); and 

6 ‘‘(B) there are specific and articulable 

7 facts providing reason to believe that the 

8 records— 

9 ‘‘(i) pertain to a suspected agent of a 

10 foreign power or an individual who is the 

11 subject of an ongoing and authorized na12 tional security investigation (other than an 

13 assessment); 

14 ‘‘(ii) pertain to an individual who has 

15 been in contact with, or otherwise directly 

16 linked to, a suspected agent of a foreign 

17 power or an individual who is the subject 

18 of an ongoing and authorized national se19 curity investigation (other than an assess20 ment); or 

21 ‘‘(iii) pertain to the activities of a sus22 pected agent of a foreign power, where 

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1 ment), and obtaining the records is the 

2 least intrusive means that could be used to 

3 identify persons believed to be involved in 

4 the activities. 

5 ‘‘(2) INVESTIGATION.—For purposes of this 

6 section, an ongoing and authorized national security 

7 investigation— 

8 ‘‘(A) is an investigation conducted under 

9 guidelines approved by the Attorney General 

10 and in accordance with Executive Order 12333 

11 (or any successor order); 

12 ‘‘(B) shall not be conducted with respect to 

13 a United States person upon the basis of activi14 ties protected by the first amendment to the 

15 Constitution of the United States; and 

16 ‘‘(C) shall be specifically identified and re17 corded by an official issuing a National Security 

18 Letter under subsection (a). 

19 ‘‘(3) CONTENTS.—A National Security Letter 

20 issued under subsection (a) shall— 

21 ‘‘(A) describe the records to be produced 

22 with sufficient particularity to permit the 

23 records to be fairly identified; 

24 ‘‘(B) include the date on which the records 

25 shall be provided, which shall allow a reasonable 


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1 period of time within which the records can be 

2 assembled and made available; 

3 ‘‘(C) provide clear and conspicuous notice 

4 of the principles and procedures set forth in 

5 this section and section 3511 of this title, in6 cluding notification of any nondisclosure re7 quirement under subsection (c), the right to 

8 contest the National Security Letter or applica9 ble nondisclosure requirements and procedures 

10 for doing so, and a statement laying out the 

11 rights and responsibilities of the recipient; and 

12 ‘‘(D) not contain any requirement that 

13 would be held to be unreasonable if contained 

14 in a subpoena duces tecum issued by a court of 

15 the United States in aid of a grand jury inves16 tigation or require the production of any docu17 mentary evidence that would be privileged from 

18 disclosure if demanded by a subpoena duces 

19 tecum issued by a court of the United States in 

20 aid of a grand jury investigation. 

21 ‘‘(4) RETENTION OF RECORDS.—The Director 

22 of the Federal Bureau of Investigation shall direct 

23 that a signed copy of each National Security Letter 

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1 base required to be established under section 103 of 

2 the JUSTICE Act. 

3 ‘‘(c) PROHIBITION OF CERTAIN DISCLOSURE.— 

4 ‘‘(1) IN GENERAL.— 

5 ‘‘(A) IN GENERAL.—If a certification is 

6 issued under subparagraph (B) and notice of 

7 the right to judicial review under paragraph (4) 

8 is provided, no wire or electronic communica9 tion service provider, or officer, employee, or 

10 agent thereof, who receives a National Security 

11 Letter issued under subsection (a), shall dis12 close to any person the particular information 

13 specified in the certification during the time pe14 riod to which the certification applies, which 

15 may be not longer than 1 year. 

16 ‘‘(B) CERTIFICATION.—The requirements 

17 of subparagraph (A) shall apply if the Director 

18 of the Federal Bureau of Investigation, or a 

19 designee of the Director whose rank shall be no 

20 lower than Deputy Assistant Director at Bu21 reau headquarters or a Special Agent in Charge 

22 of a Bureau field office, certifies that— 

23 ‘‘(i) there is reason to believe that dis24 closure of particular information about the 

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1 rity Letter issued under subsection (a) 

2 during the applicable time period will re3 sult in— 

4 ‘‘(I) endangering the life or phys5 ical safety of any person; 

6 ‘‘(II) flight from prosecution; 

7 ‘‘(III) destruction of or tam8 pering with evidence; 

9 ‘‘(IV) intimidation of potential 

10 witnesses; 

11 ‘‘(V) interference with diplomatic 

12 relations; or 

13 ‘‘(VI) otherwise seriously endan14 gering the national security of the 

15 United States by alerting a target, an 

16 associate of a target, or the foreign 

17 power of which the target is an agent, 

18 of the interest of the Government in 

19 the target; 

20 ‘‘(ii) the harm identified under clause 

21 (i) relates to the ongoing and authorized 

22 national security investigation to which the 

23 records sought are relevant; and 


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1 ‘‘(iii) the nondisclosure requirement is 

2 narrowly tailored to address the specific 

3 harm identified under clause (i). 

4 ‘‘(2) EXCEPTION.— 

5 ‘‘(A) IN GENERAL.—A wire or electronic 

6 communication service provider, or officer, em7 ployee, or agent thereof, who receives a Na8 tional Security Letter issued under subsection 

9 (a) may disclose information otherwise subject 

10 to any applicable nondisclosure requirement 

11 to— 

12 ‘‘(i) those persons to whom disclosure 

13 is necessary in order to comply with the 

14 National Security Letter; 

15 ‘‘(ii) an attorney in order to obtain 

16 legal advice or assistance regarding the 

17 National Security Letter; or 

18 ‘‘(iii) other persons as permitted by 

19 the Director of the Federal Bureau of In20 vestigation or the designee of the Director. 

21 ‘‘(B) NONDISCLOSURE REQUIREMENT.—A 

22 person to whom disclosure is made under sub23 paragraph (A) shall be subject to the nondisclo24 sure requirements applicable to a person to 

25 whom a National Security Letter is issued 


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1 under subsection (a) in the same manner as the 

2 person to whom the National Security Letter is 

3 issued. 

4 ‘‘(C) NOTICE.—Any recipient who discloses 

5 to a person described in subparagraph (A) in6 formation otherwise subject to a nondisclosure 

7 requirement shall inform the person of the ap8 plicable nondisclosure requirement. 

9 ‘‘(3) EXTENSION.—The Director of the Federal 

10 Bureau of Investigation, or a designee of the Direc11 tor whose rank shall be no lower than Deputy As12 sistant Director at Bureau headquarters or a Special 

13 Agent in Charge in a Bureau field office, may ex14 tend a nondisclosure requirement for additional peri15 ods of not longer than 1 year if, at the time of each 

16 extension, a new certification is made under para17 graph (1)(B) and notice is provided to the recipient 

18 of the applicable National Security Letter that the 

19 nondisclosure requirement has been extended and 

20 the recipient has the right to judicial review of the 

21 nondisclosure requirement. 

22 ‘‘(4) RIGHT TO JUDICIAL REVIEW.— 

23 ‘‘(A) IN GENERAL.—A wire or electronic 

24 communications service provider who receives a 

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1 section (a) shall have the right to judicial re2 view of any applicable nondisclosure require3 ment and any extension thereof. 

4 ‘‘(B) TIMING.— 

5 ‘‘(i) IN GENERAL.—A National Secu6 rity Letter issued under subsection (a) 

7 shall state that if the recipient wishes to 

8 have a court review a nondisclosure re9 quirement, the recipient shall notify the 

10 Government not later than 21 days after 

11 the date of receipt of the National Security 

12 Letter. 

13 ‘‘(ii) EXTENSION.—A notice that the 

14 applicable nondisclosure requirement has 

15 been extended under paragraph (3) shall 

16 state that if the recipient wishes to have a 

17 court review the nondisclosure require18 ment, the recipient shall notify the Govern19 ment not later than 21 days after the date 

20 of receipt of the notice. 

21 ‘‘(C) INITIATION OF PROCEEDINGS.—If a 

22 recipient of a National Security Letter issued 

23 under subsection (a) makes a notification under 

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1 tiate judicial review under the procedures estab2 lished in section 3511 of this title. 

3 ‘‘(5) TERMINATION.—If the facts supporting a 

4 nondisclosure requirement cease to exist prior to the 

5 applicable time period of the nondisclosure require6 ment, an appropriate official of the Federal Bureau 

7 of Investigation shall promptly notify the wire or 

8 electronic service provider, or officer, employee, or 

9 agent thereof, subject to the nondisclosure require10 ment that the nondisclosure requirement is no longer 

11 in effect. 

12 ‘‘(d) MINIMIZATION AND DESTRUCTION.— 

13 ‘‘(1) IN GENERAL.—Not later than 180 days 

14 after the date of enactment of the JUSTICE Act, 

15 the Attorney General shall establish minimization 

16 and destruction procedures governing the acquisi17 tion, retention and dissemination by the Federal Bu18 reau of Investigation of any records received by the 

19 Federal Bureau of Investigation in response to a 

20 National Security Letter issued under subsection 

21 (a). 

22 ‘‘(2) DEFINITION.—In this subsection, the term 

23 ‘minimization and destruction procedures’ means— 

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1 nique of a National Security Letter, to mini2 mize the acquisition and retention, and prohibit 

3 the dissemination, of nonpublicly available in4 formation concerning unconsenting United 

5 States persons consistent with the need of the 

6 United States to obtain, produce, and dissemi7 nate foreign intelligence information, including 

8 procedures to ensure that information obtained 

9 under a National Security Letter that does not 

10 meet the requirements of this section or is out11 side the scope of the National Security Letter, 

12 is returned or destroyed; 

13 ‘‘(B) procedures that require that nonpub14 licly available information, which is not foreign 

15 intelligence information (as defined in section 

16 101(e)(1) of the Foreign Intelligence Surveil17 lance Act of 1978 (50 U.S.C. 1801(e)(1))) shall 

18 not be disseminated in a manner that identifies 

19 any United States person, without the consent 

20 of the United States person, unless the identity 

21 of the United States person is necessary to un22 derstand foreign intelligence information or as23 sess its importance; and 

24 ‘‘(C) notwithstanding subparagraphs (A) 

25 and (B), procedures that allow for the retention 


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1 and dissemination of information that is evi2 dence of a crime which has been, is being, or 

3 is about to be committed and that is to be re4 tained or disseminated for law enforcement pur5 poses. 

6 ‘‘(e) REQUIREMENT THAT CERTAIN CONGRESSIONAL

7 BODIES BE INFORMED.— 

8 ‘‘(1) IN GENERAL.—On a semiannual basis the 

9 Director of the Federal Bureau of Investigation shall 

10 fully inform the Permanent Select Committee on In11 telligence and the Committee on the Judiciary of the 

12 Senate and the Select Committee on Intelligence and 

13 the Committee on the Judiciary of the House of 

14 Representatives concerning all National Security 

15 Letters issued under subsection (a). 

16 ‘‘(2) CONTENTS.—Each report under para17 graph (1) shall include— 

18 ‘‘(A) a description of the minimization and 

19 destruction procedures adopted by the Attorney 

20 General under subsection (d), including any 

21 changes to the minimization and destruction 

22 procedures previously adopted by the Attorney 

23 General; 

24 ‘‘(B) a summary of any petitions or court 

25 proceedings under section 3511 of this title; 


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1 ‘‘(C) a description of the extent to which 

2 information obtained with National Security 

3 Letters issued under subsection (a) has aided 

4 intelligence investigations and an explanation of 

5 how the information has aided the investiga6 tions; and 

7 ‘‘(D) a description of the extent to which 

8 information obtained with National Security 

9 Letters issued under subsection (a) has aided 

10 criminal prosecutions and an explanation of 

11 how the information has aided the prosecutions. 

12 ‘‘(f) USE OF INFORMATION.— 

13 ‘‘(1) IN GENERAL.— 

14 ‘‘(A) CONSENT.—Any information ac15 quired under a National Security Letter issued 

16 under subsection (a) concerning any United 

17 States person may be used and disclosed by 

18 Federal officers and employees without the con19 sent of the United States person only in accord20 ance with the minimization and destruction pro21 cedures established by the Attorney General 

22 under subsection (d). 

23 ‘‘(B) LAWFUL PURPOSE.—No information 

24 acquired under a National Security Letter 

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1 closed by Federal officers or employees except 

2 for lawful purposes. 

3 ‘‘(2) DISCLOSURE FOR LAW ENFORCEMENT

4 PURPOSES.—No information acquired under a Na5 tional Security Letter issued under subsection (a) 

6 shall be disclosed for law enforcement purposes un7 less the disclosure is accompanied by a statement 

8 that the information, or any information derived 

9 therefrom, may only be used in a criminal pro10 ceeding with the advance authorization of the Attor11 ney General. 

12 ‘‘(3) NOTIFICATION OF INTENDED DISCLOSURE

13 BY THE UNITED STATES.—Whenever the United 

14 States intends to enter into evidence or otherwise 

15 use or disclose in any trial, hearing, or other pro16 ceeding in or before any court, department, officer, 

17 agency, regulatory body, or other authority of the 

18 United States against an aggrieved person any infor19 mation obtained or derived from a National Security 

20 Letter issued under subsection (a), the United 

21 States shall, before the trial, hearing, or other pro22 ceeding or at a reasonable time before an effort to 

23 so disclose or so use the information or submit the 

24 information in evidence, notify the aggrieved person 

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1 mation is to be disclosed or used that the United 

2 States intends to so disclose or so use the informa3 tion. 

4 ‘‘(4) NOTIFICATION OF INTENDED DISCLOSURE

5 BY STATE OR POLITICAL SUBDIVISION.—Whenever 

6 any State or political subdivision thereof intends to 

7 enter into evidence or otherwise use or disclose in 

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

9 any court, department, officer, agency, regulatory 

10 body, or other authority of the State or political sub11 division thereof against an aggrieved person any in12 formation obtained or derived from a National Secu13 rity Letter issued under subsection (a), the State or 

14 political subdivision thereof shall notify the ag15 grieved person, the court or other authority in which 

16 the information is to be disclosed or used, and the 

17 Attorney General that the State or political subdivi18 sion thereof intends to so disclose or so use the in19 formation. 

20 ‘‘(5) MOTION TO SUPPRESS.— 

21 ‘‘(A) IN GENERAL.—Any aggrieved person 

22 against whom evidence obtained or derived from 

23 a National Security Letter issued under sub24 section (a) is to be, or has been, introduced or 

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1 ing, or other proceeding in or before any court, 

2 department, officer, agency, regulatory body, or 

3 other authority of the United States, or a State 

4 or political subdivision thereof, may move to 

5 suppress the evidence obtained or derived from 

6 the National Security Letter, as the case may 

7 be, on the grounds that— 

8 ‘‘(i) the information was acquired in 

9 violation of the Constitution or laws of the 

10 United States; or 

11 ‘‘(ii) the National Security Letter was 

12 not issued in accordance with the require13 ments of this section. 

14 ‘‘(B) TIMING.—A motion under subpara15 graph (A) shall be made before the trial, hear16 ing, or other proceeding unless there was no op17 portunity to make such a motion or the ag18 grieved person concerned was not aware of the 

19 grounds of the motion. 

20 ‘‘(6) JUDICIAL REVIEW.— 

21 ‘‘(A) IN GENERAL.—In a circumstance de22 scribed in subparagraph (B), a United States 

23 district court or, where the motion is made be24 fore another authority, the United States dis25 trict court in the same district as the authority 


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1 shall, if the Attorney General files an affidavit 

2 under oath that disclosure would harm the na3 tional security of the United States, review in 

4 camera such materials as may be necessary to 

5 determine whether the National Security Letter 

6 was lawfully issued. 

7 ‘‘(B) CIRCUMSTANCES.—A circumstance 

8 described in this subparagraph is a cir9 cumstance in which— 

10 ‘‘(i) a court or other authority is noti11 fied under paragraph (3) or (4); 

12 ‘‘(ii) a motion is made under para13 graph (5); or 

14 ‘‘(iii) any motion or request is made 

15 by an aggrieved person under any other 

16 statute or rule of the United States or any 

17 State before any court or other authority 

18 of the United States or any State to— 

19 ‘‘(I) discover or obtain materials 

20 relating to a National Security Letter 

21 issued under subsection (a); or 

22 ‘‘(II) discover, obtain, or sup23 press evidence or information obtained 

24 or derived from a National Security 

25 Letter issued under subsection (a). 


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1 ‘‘(C) DISCLOSURE.—In making a deter2 mination under subparagraph (A), unless the 

3 court finds that disclosure would not assist in 

4 determining any legal or factual issue pertinent 

5 to the case, the court may disclose to the ag6 grieved person, the counsel for the aggrieved 

7 person, or both, under the procedures and 

8 standards provided in the Classified Informa9 tion Procedures Act (18 U.S.C. App.) or other 

10 appropriate security procedures and protective 

11 orders, portions of the National Security Letter, 

12 or related materials. 

13 ‘‘(7) EFFECT OF DETERMINATION OF LAWFUL14 NESS.— 

15 ‘‘(A) UNLAWFUL ORDERS.—If a United 

16 States district court determines under para17 graph (6) that a National Security Letter was 

18 not issued in compliance with the Constitution 

19 or laws of the United States, the court may 

20 suppress the evidence that was unlawfully ob21 tained or derived from the National Security 

22 Letter or otherwise grant the motion of the ag23 grieved person. 

24 ‘‘(B) LAWFUL ORDERS.—If a United 

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1 graph (6) that a National Security Letter was 

2 issued in accordance with the Constitution and 

3 laws of the United States, the court shall deny 

4 the motion of the aggrieved person, except to 

5 the extent that due process requires discovery 

6 or disclosure. 

7 ‘‘(8) BINDING FINAL ORDERS.—An order grant8 ing a motion or request under paragraph (6), a deci9 sion under this section that a National Security Let10 ter was not lawful, and an order of a United States 

11 district court requiring review or granting disclosure 

12 of an application, order, or other related materials 

13 shall be a final order and binding upon all courts of 

14 the United States and the several States, except an 

15 appeal or petition to a United States court of ap16 peals or the Supreme Court of the United States. 

17 ‘‘(g) DEFINITIONS.—In this section— 

18 ‘‘(1) the terms ‘agent of a foreign power’, ‘for19 eign power’, and ‘United States person’ have the 

20 meanings given those terms in section 101 of the 

21 Foreign Intelligence Surveillance Act of 1978 (50 

22 U.S.C. 1801); 

23 ‘‘(2) the term ‘aggrieved person’ means a per24 son whose information or records were sought or ob25 tained under this section; and 


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1 ‘‘(3) the term ‘assessment’ means an assess2 ment, as that term is used in the guidelines entitled 

3 ‘The Attorney General’s Guidelines for Domestic 

4 FBI Operations’, or any successor thereto.’’. 

5 (2) TECHNICAL AND CONFORMING AMEND6 MENT.—The table of sections for chapter 121 of 

7 title 18, United States Code, is amended by striking 

8 the item relating to section 2709 and inserting the 

9 following: 

‘‘2709. National Security Letter for communications subscriber records.’’. 

10 (b) NATIONAL SECURITY LETTER AUTHORITY FOR

11 CERTAIN FINANCIAL RECORDS.—Section 1114 of the 

12 Right to Financial Privacy Act of 1978 (12 U.S.C. 3414) 

13 is amended to read as follows: 

14 ‘‘SEC. 1114. NATIONAL SECURITY LETTER FOR CERTAIN FI15 NANCIAL RECORDS. 

16 ‘‘(a) AUTHORIZATION.— 

17 ‘‘(1) IN GENERAL.—The Director of the Fed18 eral Bureau of Investigation, or a designee of the 

19 Director whose rank shall be no lower than Deputy 

20 Assistant Director at Bureau headquarters or Spe21 cial Agent in Charge in a Bureau field office, may 

22 issue in writing and cause to be served on a financial 

23 institution, a National Security Letter requiring the 

24 production of— 


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1 ‘‘(A) the name of a customer or entity with 

2 whom the financial institution has a financial 

3 relationship; 

4 ‘‘(B) the address of a customer or entity 

5 with whom the financial institution has a finan6 cial relationship; 

7 ‘‘(C) the length of time during which a 

8 customer or entity has had an account or other 

9 financial relationship with the financial institu10 tion (including the start date) and the type of 

11 account or other financial relationship; and 

12 ‘‘(D) any account number or other unique 

13 identifier associated with the financial relation14 ship of a customer or entity to the financial in15 stitution. 

16 ‘‘(2) LIMITATION.—A National Security Letter 

17 issued under this subsection may not require the 

18 production of records or information not listed in 

19 paragraph (1). 

20 ‘‘(b) NATIONAL SECURITY LETTER REQUIRE21 MENTS.— 

22 ‘‘(1) IN GENERAL.—A National Security Letter 

23 issued under subsection (a) shall be subject to the 

24 requirements of subsections (b) through (g) of sec25 tion 2709 of title 18, United States Code, in the 


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•S 1686 IS

1 same manner and to the same extent as those provi2 sions apply with respect to a National Security Let3 ter issued under section 2709(a) of title 18, United 

4 States Code, to a wire or electronic communication 

5 service provider. 

6 ‘‘(2) REPORTING.—For any National Security 

7 Letter issued under subsection (a), the semiannual 

8 reports under section 2709(e) of title 18, United 

9 States Code, shall also be submitted to the Com10 mittee on Banking, Housing, and Urban Affairs of 

11 the Senate and the Committee on Financial Services 

12 of the House of Representatives. 

13 ‘‘(c) DEFINITION OF ‘FINANCIAL INSTITUTION’.— 

14 For purposes of this section (and sections 1115 and 1117, 

15 insofar as the sections relate to the operation of this sec16 tion), the term ‘financial institution’ has the same mean17 ing as in subsections (a)(2) and (c)(1) of section 5312 of 

18 title 31, except that the term shall include only a financial 

19 institution any part of which is located inside any State 

20 or territory of the United States, the District of Columbia, 

21 Puerto Rico, Guam, American Samoa, the Commonwealth 

22 of the Northern Mariana Islands, or the United States 

23 Virgin Islands.’’. 

24 (c) NATIONAL SECURITY LETTER AUTHORITY FOR

25 CERTAIN CONSUMER REPORT RECORDS.— 


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•S 1686 IS

1 (1) IN GENERAL.—Section 626 of the Fair 

2 Credit Reporting Act (15 U.S.C. 1681u) is amend3 ed— 

4 (A) by striking the section heading and in5 serting the following: 

6 ‘‘§ 626. National Security Letters for certain con7 sumer report records’’; 

8 (B) by striking subsections (a) through (d) 

9 and inserting the following: 

10 ‘‘(a) AUTHORIZATION.— 

11 ‘‘(1) IN GENERAL.—The Director of the Fed12 eral Bureau of Investigation, or a designee of the 

13 Director whose rank shall be no lower than Deputy 

14 Assistant Director at Bureau headquarters or Spe15 cial Agent in Charge in a Bureau field office, may 

16 issue in writing and cause to be served on a con17 sumer reporting agency a National Security Letter 

18 requiring the production of— 

19 ‘‘(A) the name of a consumer; 

20 ‘‘(B) the current and former address of a 

21 consumer; 

22 ‘‘(C) the current and former places of em23 ployment of a consumer; and 

24 ‘‘(D) the name and address of any finan25 cial institution (as that term is defined in secVerDate Nov 24 2008 00:05 Sep 18, 2009 Jkt 079200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\S1686.IS S1686

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•S 1686 IS

1 tion 1101 of the Right to Financial Privacy Act 

2 of 1978 (12 U.S.C. 3401)) at which a consumer 

3 maintains or has maintained an account, to the 

4 extent that the information is in the files of the 

5 consumer reporting agency. 

6 ‘‘(2) LIMITATION.—A National Security Letter 

7 issued under this subsection may not require the 

8 production of a consumer report. 

9 ‘‘(b) NATIONAL SECURITY LETTER REQUIRE10 MENTS.— 

11 ‘‘(1) IN GENERAL.—A National Security Letter 

12 issued under subsection (a) shall be subject to the 

13 requirements of subsections (b) through (g) of sec14 tion 2709 of title 18, United States Code, in the 

15 same manner and to the same extent as those provi16 sions apply with respect to a National Security Let17 ter issued under section 2709(a) of title 18, United 

18 States Code, to a wire or electronic communication 

19 service provider. 

20 ‘‘(2) REPORTING.—For any National Security 

21 Letter issued under subsection (a), the semiannual 

22 reports under section 2709(e) of title 18, United 

23 States Code, shall also be submitted to the Com24 mittee on Banking, Housing, and Urban Affairs of 


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•S 1686 IS

1 the Senate and the Committee on Financial Services 

2 of the House of Representatives.’’; 

3 (C) by striking subsections (f) through (h); 

4 and 

5 (D) by redesignating subsections (e) and 

6 (i) through (m) as subsections (c) through (h), 

7 respectively. 

8 (2) REPEAL.—Section 627 of the Fair Credit 

9 Reporting Act (15 U.S.C. 1681v) is repealed. 

10 (3) TECHNICAL AND CONFORMING AMEND11 MENT.—The table of sections for the Fair Credit 

12 Reporting Act (15 U.S.C. 1681 et seq.) is amended 

13 by striking the items relating to sections 626 and 

14 627 and inserting the following: 

‘‘626. National Security Letters for certain consumer report records. 

‘‘627. [Repealed].’’. 

15 SEC. 102. JUDICIAL REVIEW OF NATIONAL SECURITY LET16 TERS. 

17 (a) REVIEW OF NONDISCLOSURE ORDERS.—Section 

18 3511(b) of title 18, United States Code, is amended to 

19 read as follows: 

20 ‘‘(b) NONDISCLOSURE.— 

21 ‘‘(1) IN GENERAL.— 

22 ‘‘(A) NOTICE.—If a recipient of a National 

23 Security Letter under section 2709 of this title, 

24 section 626 of the Fair Credit Reporting Act 


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•S 1686 IS

1 (15 U.S.C. 1681u), section 1114 of the Right 

2 to Financial Privacy Act (12 U.S.C. 3414), or 

3 section 802(a) of the National Security Act of 

4 1947 (50 U.S.C. 436(a)), wishes to have a 

5 court review a nondisclosure requirement im6 posed in connection with the National Security 

7 Letter, the recipient shall notify the Govern8 ment not later than 21 days after the date of 

9 receipt of the National Security Letter or of no10 tice that an applicable nondisclosure require11 ment has been extended. 

12 ‘‘(B) APPLICATION.—Not later than 21 

13 days after the date of receipt of a notification 

14 under subparagraph (A), the Government shall 

15 apply for an order prohibiting the disclosure of 

16 particular information about the existence or 

17 contents of the relevant National Security Let18 ter. An application under this subparagraph 

19 may be filed in the district court of the United 

20 States for any district within which the author21 ized investigation that is the basis for the Na22 tional Security Letter is being conducted. The 

23 applicable nondisclosure requirement shall re24 main in effect during the pendency of pro25 ceedings relating to the requirement. 


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•S 1686 IS

1 ‘‘(C) CONSIDERATION.—A district court of 

2 the United States that receives an application 

3 under subparagraph (B) should rule expedi4 tiously, and may issue a nondisclosure order for 

5 a period of not longer than 1 year, unless the 

6 facts justify a longer period of nondisclosure. 

7 ‘‘(D) DENIAL.—If a district court of the 

8 United States rejects an application for a non9 disclosure order or extension thereof, the non10 disclosure requirement shall no longer be in ef11 fect. 

12 ‘‘(2) APPLICATION CONTENTS.—An application 

13 for a nondisclosure order or extension thereof under 

14 this subsection shall include— 

15 ‘‘(A) a statement of specific and articulable 

16 facts giving the applicant reason to believe that 

17 disclosure of particular information about the 

18 existence or contents of a National Security 

19 Letter described in paragraph (1)(A) during the 

20 applicable time period will result in— 

21 ‘‘(i) endangering the life or physical 

22 safety of any person; 

23 ‘‘(ii) flight from prosecution; 

24 ‘‘(iii) destruction of or tampering with 

25 evidence; 


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•S 1686 IS

1 ‘‘(iv) intimidation of potential wit2 nesses; 

3 ‘‘(v) interference with diplomatic rela4 tions; or 

5 ‘‘(vi) otherwise seriously endangering 

6 the national security of the United States 

7 by alerting a target, an associate of a tar8 get, or the foreign power of which the tar9 get is an agent, of the interest of the Gov10 ernment in the target; 

11 ‘‘(B) an explanation of how the harm iden12 tified under subparagraph (A) relates to the on13 going and authorized national security inves14 tigation to which the records sought are rel15 evant; 

16 ‘‘(C) an explanation of how the nondisclo17 sure requirement is narrowly tailored to address 

18 the specific harm identified under subparagraph 

19 (A); and 

20 ‘‘(D) the time period during which the 

21 Government believes the nondisclosure require22 ment should apply. 

23 ‘‘(3) STANDARD.—A district court of the 

24 United States may issue a nondisclosure requireVerDate Nov 24 2008 00:05 Sep 18, 2009 Jkt 079200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\S1686.IS S1686

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•S 1686 IS

1 ment order or extension thereof under this sub2 section if the court determines that— 

3 ‘‘(A) there is reason to believe that disclo4 sure of the information subject to the nondisclo5 sure requirement during the applicable time pe6 riod will result in— 

7 ‘‘(i) endangering the life or physical 

8 safety of any person; 

9 ‘‘(ii) flight from prosecution; 

10 ‘‘(iii) destruction of or tampering with 

11 evidence; 

12 ‘‘(iv) intimidation of potential wit13 nesses; 

14 ‘‘(v) interference with diplomatic rela15 tions; or 

16 ‘‘(vi) otherwise seriously endangering 

17 the national security of the United States 

18 by alerting a target, an associate of a tar19 get, or the foreign power of which the tar20 get is an agent, of the interest of the Gov21 ernment in the target; 

22 ‘‘(B) the harm identified under subpara23 graph (A) relates to the ongoing and authorized 

24 national security investigation to which the 

25 records sought are relevant; and 


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•S 1686 IS

1 ‘‘(C) the nondisclosure requirement is nar2 rowly tailored to address the specific harm iden3 tified under subparagraph (A). 

4 ‘‘(4) RENEWAL.—A nondisclosure order under 

5 this subsection may be renewed for additional peri6 ods of not longer than 1 year, unless the facts of the 

7 case justify a longer period of nondisclosure, upon 

8 submission of an application meeting the require9 ments of paragraph (2), and a determination by the 

10 court that the circumstances described in paragraph 

11 (3) continue to exist.’’. 

12 (b) DISCLOSURE.—Section 3511(d) of title 18, 

13 United States Code, is amended to read as follows: 

14 ‘‘(d) DISCLOSURE.—In making determinations under 

15 this section, unless the district court of the United States 

16 finds that disclosure would not assist in determining any 

17 legal or factual issue pertinent to the case, the court may 

18 disclose to the petitioner, the counsel of the petitioner, or 

19 both, under the procedures and standards provided in the 

20 Classified Information Procedures Act (18 U.S.C. App.) 

21 or other appropriate security procedures and protective or22 ders, portions of the National Security Letter, or related 

23 materials.’’. 

24 (c) CONFORMING AMENDMENTS.—Section 3511 of 

25 title 18, United States Code, is amended— 


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•S 1686 IS

1 (1) in subsection (a)— 

2 (A) by inserting after ‘‘(a)’’ the following 

3 ‘‘REQUEST.—’’; 

4 (B) by striking ‘‘2709(b)’’ and inserting 

5 ‘‘2709’’; 

6 (C) by striking ‘‘626(a) or (b) or 627(a)’’ 

7 and inserting ‘‘626’’; and 

8 (D) by striking ‘‘1114(a)(5)(A)’’ and in9 serting ‘‘1114’’; and 

10 (2) in subsection (c)— 

11 (A) by inserting after ‘‘(c)’’ the following 

12 ‘‘FAILURE TO COMPLY.—’’; 

13 (B) by striking ‘‘2709(b)’’ and inserting 

14 ‘‘2709’’; 

15 (C) by striking ‘‘626(a) or (b) or 627(a)’’ 

16 and inserting ‘‘626’’; and 

17 (D) by striking ‘‘1114(a)(5)(A)’’ and in18 serting ‘‘1114’’. 

19 (d) REPEAL.—Section 3511(e) of title 18, United 

20 States Code, is repealed. 

21 SEC. 103. NATIONAL SECURITY LETTER COMPLIANCE PRO22 GRAM AND TRACKING DATABASE. 

23 (a) COMPLIANCE PROGRAM.—The Director of the 

24 Federal Bureau of Investigation shall establish a program 


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•S 1686 IS

1 to ensure compliance with the amendments made by sec2 tion 101. 

3 (b) TRACKING DATABASE.—The compliance program 

4 required under subsection (a) shall include the establish5 ment of a database, the purpose of which shall be to track 

6 all National Security Letters. 

7 (c) INFORMATION.—The database required under 

8 this section shall include— 

9 (1) a signed copy of each National Security 

10 Letter; 

11 (2) the date the National Security Letter was 

12 issued and for what type of information; 

13 (3) whether the National Security Letter seeks 

14 information regarding a United States person; 

15 (4) identification of the ongoing and authorized 

16 national security investigation (other than an assess17 ment) to which the National Security Letter relates; 

18 (5) whether the National Security Letter seeks 

19 information regarding an individual who is the sub20 ject of the investigation described in paragraph (4); 

21 (6) the date on which the information requested 

22 was received and, if applicable, when the information 

23 was destroyed; and 

24 (7) whether the information gathered was dis25 closed for law enforcement purposes. 


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•S 1686 IS

1 (d) DEFINITIONS.—In this section— 

2 (1) the term ‘‘assessment’’ means an assess3 ment, as that term is used in the guidelines entitled 

4 ‘‘The Attorney General’s Guidelines for Domestic 

5 FBI Operations’’, or any successor thereto; and 

6 (2) the term ‘‘National Security Letter’’ means 

7 a National Security Letter issued by the Federal 

8 Bureau of Investigation under section 1114 of the 

9 Right to Financial Privacy Act of 1978 (12 U.S.C. 

10 3414), section 626 of the Fair Credit Reporting Act 

11 (15 U.S.C. 1681u), or section 2709 of title 18, 

12 United States Code. 

13 SEC. 104. PUBLIC REPORTING ON NATIONAL SECURITY 

14 LETTERS. 

15 Section 118(c) of the USA PATRIOT Improvement 

16 and Reauthorization Act of 2005 (18 U.S.C. 3511 note) 

17 is amended— 

18 (1) in paragraph (1)— 

19 (A) in the matter preceding subparagraph 

20 (A), by striking ‘‘concerning different United 

21 States persons’’; and 

22 (B) in subparagraph (A), by striking ‘‘, ex23 cluding the number of requests for subscriber 

24 information’’; 


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•S 1686 IS

1 (2) by redesignating paragraph (2) as para2 graph (3); and 

3 (3) by inserting after paragraph (1) the fol4 lowing: 

5 ‘‘(2) CONTENT.— 

6 ‘‘(A) IN GENERAL.—Except as provided in 

7 subparagraph (B), each report required under 

8 this subsection shall include the total number of 

9 requests described in paragraph (1) requiring 

10 disclosure of information concerning— 

11 ‘‘(i) United States persons; 

12 ‘‘(ii) persons who are not United 

13 States persons; 

14 ‘‘(iii) persons who are the subjects of 

15 authorized national security investigations; 

16 or 

17 ‘‘(iv) persons who are not the subjects 

18 of authorized national security investiga19 tions. 

20 ‘‘(B) EXCEPTION.—With respect to the 

21 number of requests for subscriber information 

22 under section 2709 of title 18, United States 

23 Code, a report required under this subsection 

24 need not provide information separated into 


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•S 1686 IS

1 each of the categories described in subpara2 graph (A).’’. 

3 SEC. 105. EMERGENCY DISCLOSURES. 

4 (a) ENHANCED PROTECTIONS FOR EMERGENCY DIS5 CLOSURES.— 

6 (1) STORED COMMUNICATIONS ACT.—Section 

7 2702 of title 18, United States Code is amended— 

8 (A) in subsection (b)(8)— 

9 (i) by striking ‘‘, in good faith,’’ and 

10 inserting ‘‘reasonably’’; 

11 (ii) by inserting ‘‘immediate’’ after 

12 ‘‘involving’’; and 

13 (iii) by adding before the period: ‘‘and 

14 the request is narrowly tailored to address 

15 the emergency, subject to the limitations of 

16 subsection (d)’’; 

17 (B) in subsection (c)(4)— 

18 (i) by striking ‘‘, in good faith,’’ and 

19 inserting ‘‘reasonably’’; 

20 (ii) by inserting ‘‘immediate’’ after 

21 ‘‘involving’’; and 

22 (iii) by adding before the period: ‘‘, 

23 subject to the limitations of subsection 

24 (d)’’; 


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•S 1686 IS

1 (C) by redesignating subsection (d) as sub2 section (e); 

3 (D) by inserting after subsection (c) the 

4 following: 

5 ‘‘(d) REQUIREMENT.— 

6 ‘‘(1) REQUEST.—If a governmental entity re7 quests that a provider divulge information under 

8 subsection (b)(8) or (c)(4), the request shall specify 

9 that the disclosure is on a voluntary basis and shall 

10 document the factual basis for believing that an 

11 emergency involving immediate danger of death or 

12 serious physical injury to a person requires disclo13 sure without delay of the information relating to the 

14 emergency. 

15 ‘‘(2) NOTICE TO COURT.—Not later than 5 

16 days after the date on which a governmental entity 

17 obtains access to records under subsection (b)(8) or 

18 (c)(4), a governmental entity shall file with the ap19 propriate court a signed, sworn statement of a su20 pervisory official of a rank designated by the head 

21 of the governmental entity setting forth the grounds 

22 for the emergency access.’’; and 

23 (E) in subsection (e), as so redesignated, 

24 in each of paragraphs (1) and (2), by striking 


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•S 1686 IS

1 ‘‘subsection (b)(8)’’ and inserting ‘‘subsections 

2 (b)(8) and (c)(4)’’. 

3 (2) RIGHT TO FINANCIAL PRIVACY ACT.— 

4 (A) EMERGENCY DISCLOSURES.—The 

5 Right to Financial Privacy Act of 1978 (12 

6 U.S.C. 3401 et seq.) is amended by inserting 

7 after section 1120 the following: 

8 ‘‘SEC. 1121. EMERGENCY DISCLOSURES. 

9 ‘‘(a) IN GENERAL.— 

10 ‘‘(1) STANDARD.—A financial institution may 

11 divulge a record described in section 1114(a) per12 taining to a customer to a Government authority, if 

13 the financial institution reasonably believes that an 

14 emergency involving immediate danger of death or 

15 serious physical injury to a person requires disclo16 sure without delay of information relating to the 

17 emergency and the request is narrowly tailored to 

18 address the emergency. 

19 ‘‘(2) NOTICE IN REQUEST.—If a Government 

20 authority requests that a financial institution divulge 

21 information under this section, the request shall 

22 specify that the disclosure is on a voluntary basis, 

23 and shall document the factual basis for believing 

24 that an emergency involving immediate danger of 


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•S 1686 IS

1 death or serious physical injury to a person requires 

2 disclosure without delay of the information. 

3 ‘‘(b) CERTIFICATE.—In the instances described in 

4 subsection (a), the Government authority shall submit to 

5 the financial institution the certificate required in section 

6 1103(b), signed by a supervisory official of a rank des7 ignated by the head of the Government authority. 

8 ‘‘(c) NOTICE TO COURT.—Not later than 5 days after 

9 the date on which a Government authority obtains access 

10 to financial records under this section, the Government 

11 authority shall file with the appropriate court a signed, 

12 sworn statement of a supervisory official of a rank des13 ignated by the head of the Government authority setting 

14 forth the grounds for the emergency access. After filing 

15 a statement under this subsection, a Government author16 ity shall provide notice to the customer in accordance with 

17 section 1109. 

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

19 On an annual basis, the Attorney General of the United 

20 States shall submit to the Committee on the Judiciary and 

21 the Committee on Financial Services of the House of Rep22 resentatives and the Committee on the Judiciary and the 

23 Committee on Banking, Housing, and Urban Affairs of 

24 the Senate a report containing— 


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•S 1686 IS

1 ‘‘(1) the number of individuals for whom the 

2 Department of Justice has received voluntary disclo3 sures under this section; and 

4 ‘‘(2) a summary of the bases for disclosure in 

5 those instances where— 

6 ‘‘(A) voluntary disclosures under this sec7 tion were made to the Department of Justice; 

8 and 

9 ‘‘(B) the investigation pertaining to those 

10 disclosures was closed without the filing of 

11 criminal charges. 

12 ‘‘(e) DEFINITION.—In this section, the term ‘finan13 cial institution’ has the meaning given that term in section 

14 1114(c).’’. 

15 (B) CONFORMING AMENDMENTS.—The 

16 Right to Financial Privacy Act of 1978 (12 

17 U.S.C. 3401 et seq.) is amended— 

18 (i) in section 1102 (12 U.S.C. 3402), 

19 by striking ‘‘or 1114’’ and inserting 

20 ‘‘1114, or 1121’’; and 

21 (ii) in section 1109(c) (12 U.S.C. 

22 3409(c)), by striking ‘‘1114(b)’’ and in23 serting ‘‘1121’’. 


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•S 1686 IS

1 (b) CLARIFICATION REGARDING DATA RETEN2 TION.—Subsection 2703(f) of title 18, United States 

3 Code, is amended by adding at the end the following: 

4 ‘‘(3) NO DISCLOSURE WITHOUT COURT

5 ORDER.—A provider of wire or electronic commu6 nications services or a remote computing service who 

7 has received a request under this subsection shall 

8 not disclose the records referred to in paragraph (1) 

9 until the provider has received a court order or other 

10 process.’’. 

11 SEC. 106. LEAST INTRUSIVE MEANS. 

12 (a) GUIDELINES.— 

13 (1) IN GENERAL.—The Attorney General shall 

14 issue guidelines (consistent with Executive Order 

15 12333 or any successor order) providing that, in na16 tional security investigations, the least intrusive col17 lection techniques feasible shall be used if there is a 

18 choice between the use of more or less intrusive in19 formation collection methods. 

20 (2) SPECIFIC COLLECTION TECHNIQUES.—The 

21 guidelines required under this section shall provide 

22 guidance with regard to specific collection tech23 niques, including the use of National Security Let24 ters, considering such factors as— 

25 (A) the effect on the privacy of individuals; 


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•S 1686 IS

1 (B) the potential damage to reputation of 

2 individuals; and 

3 (C) any special concerns under the first 

4 amendment to the Constitution of the United 

5 States relating to a potential recipient of a Na6 tional Security Letter or other legal process, in7 cluding a direction that prior to issuing a Na8 tional Security Letter or other legal process to 

9 a library or bookseller, investigative procedures 

10 aimed at obtaining the relevant information 

11 from entities other than a library or bookseller 

12 be used and have failed, or reasonably appear 

13 to be unlikely to succeed if tried or endanger 

14 lives if tried. 

15 (b) DEFINITIONS.—In this section: 

16 (1) BOOKSELLER.—The term ‘‘bookseller’’ 

17 means a person or entity engaged in the sale, rental, 

18 or delivery of books, journals, magazines, or other 

19 similar forms of communication in print or digitally. 

20 (2) LIBRARY.—The term ‘‘library’’ means a li21 brary (as that term is defined in section 213(1) of 

22 the Library Services and Technology Act (20 U.S.C. 

23 9122(1))) whose services include access to the Inter24 net, books, journals, magazines, newspapers, or 

25 other similar forms of communication in print or 


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•S 1686 IS

1 digitally to patrons for their use, review, examina2 tion, or circulation. 

3 (3) NATIONAL SECURITY LETTER.—The term 

4 ‘‘National Security Letter’’ means a National Secu5 rity Letter issued by the Federal Bureau of Inves6 tigation under section 1114 of the Right to Finan7 cial Privacy Act of 1978 (12 U.S.C. 3414), section 

8 626 of the Fair Credit Reporting Act (15 U.S.C. 

9 1681u), or section 2709 of title 18, United States 

10 Code. 

11 SEC. 107. PRIVACY PROTECTIONS FOR SECTION 215 BUSI12 NESS RECORDS ORDERS. 

13 (a) PRIVACY PROTECTIONS FOR SECTION 215 BUSI14 NESS RECORDS ORDERS.— 

15 (1) IN GENERAL.—Section 501(b) of the For16 eign Intelligence Surveillance Act of 1978 (50 

17 U.S.C. 1861(b)(2)) is amended— 

18 (A) in paragraph (1)(B), by striking ‘‘and’’ 

19 after the semicolon; 

20 (B) in paragraph (2)— 

21 (i) in subparagraph (A), by striking ‘‘, 

22 such things being presumptively’’ and all 

23 that follows through the end of the sub24 paragraph and inserting a semicolon; and 


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•S 1686 IS

1 (ii) by striking subparagraph (B) and 

2 inserting the following: 

3 ‘‘(B) a statement of specific and 

4 articulable facts providing reason to believe that 

5 the tangible things sought— 

6 ‘‘(i) pertain to a suspected agent of a 

7 foreign power or an individual who is the 

8 subject of an ongoing and authorized na9 tional security investigation (other than an 

10 assessment (as defined in section 2709 of 

11 title 18, United States Code)); 

12 ‘‘(ii) pertain to an individual who has 

13 been in contact with, or otherwise directly 

14 linked to, a suspected agent of a foreign 

15 power or an individual who is the subject 

16 of an ongoing and authorized national se17 curity investigation (other than an assess18 ment); or 

19 ‘‘(iii) pertain to the activities of a sus20 pected agent of a foreign power, where 

21 those activities are the subject of an ongo22 ing and authorized national security inves23 tigation (other than an assessment), and 

24 obtaining the records is the least intrusive 

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•S 1686 IS

1 sons believed to be involved in the activi2 ties; and 

3 ‘‘(C) a statement of proposed minimization 

4 procedures; and’’; and 

5 (C) by adding at the end the following: 

6 ‘‘(3) if the applicant is seeking a nondisclosure 

7 requirement described in subsection (d), shall in8 clude— 

9 ‘‘(A) a statement of specific and articulable 

10 facts providing reason to believe that disclosure 

11 of particular information about the existence or 

12 contents of the order requiring the production 

13 of tangible things under this section during the 

14 applicable time period will result in— 

15 ‘‘(i) endangering the life or physical 

16 safety of any person; 

17 ‘‘(ii) flight from prosecution; 

18 ‘‘(iii) destruction of or tampering with 

19 evidence; 

20 ‘‘(iv) intimidation of potential wit21 nesses; 

22 ‘‘(v) interference with diplomatic rela23 tions; or 

24 ‘‘(vi) otherwise seriously endangering 

25 the national security of the United States 


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•S 1686 IS

1 by alerting a target, an associate of a tar2 get, or the foreign power of which the tar3 get is an agent, of the interest of the Gov4 ernment in the target; 

5 ‘‘(B) an explanation of how the harm iden6 tified under subparagraph (A) is related to the 

7 authorized investigation to which the tangible 

8 things sought are relevant; 

9 ‘‘(C) an explanation of how the nondisclo10 sure requirement is narrowly tailored to address 

11 the specific harm identified under subparagraph 

12 (A); and 

13 ‘‘(D) the time period during which the 

14 Government believes the nondisclosure require15 ment should apply.’’. 

16 (2) ORDER.—Section 501(c) of the Foreign In17 telligence Surveillance Act of 1978 (50 U.S.C. 

18 1861(c)) is amended— 

19 (A) in paragraph (1)— 

20 (i) by striking ‘‘subsections (a) and 

21 (b)’’ and inserting ‘‘subsection (a) and 

22 paragraphs (1) and (2) of subsection (b) 

23 and that the proposed minimization proce24 dures meet the definition of minimization 

25 procedures under subsection (g)’’; and 


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1 (ii) by striking the last sentence and 

2 inserting the following: ‘‘If the judge finds 

3 that the requirements of subsection (b)(3) 

4 have been met, such order shall include a 

5 nondisclosure requirement, which may 

6 apply for not longer than 1 year, unless 

7 the facts justify a longer period of non8 disclosure, subject to the principles and 

9 procedures described in subsection (d).’’; 

10 and 

11 (B) in paragraph (2)— 

12 (i) in subparagraph (C), by inserting 

13 before the semicolon ‘‘, if applicable’’; 

14 (ii) in subparagraph (D), by striking 

15 ‘‘and’’ at the end; 

16 (iii) in subparagraph (E), by striking 

17 the period at the end and inserting ‘‘; 

18 and’’; and 

19 (iv) by adding at the end the fol20 lowing: 

21 ‘‘(F) shall direct that the minimization 

22 procedures be followed.’’. 

23 (3) NONDISCLOSURE.—Section 501(d) of the 

24 Foreign Intelligence Surveillance Act of 1978 (50 

25 U.S.C. 1861(d)) is amended to read as follows: 


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1 ‘‘(d) NONDISCLOSURE.— 

2 ‘‘(1) IN GENERAL.—No person who receives an 

3 order under subsection (c) that contains a nondisclo4 sure requirement shall disclose to any person the 

5 particular information specified in the nondisclosure 

6 requirement during the time period to which the re7 quirement applies. 

8 ‘‘(2) EXCEPTION.— 

9 ‘‘(A) DISCLOSURE.—A person who receives 

10 an order under subsection (c) that contains a 

11 nondisclosure requirement may disclose infor12 mation otherwise subject to any applicable non13 disclosure requirement to— 

14 ‘‘(i) those persons to whom disclosure 

15 is necessary in order to comply with an 

16 order under this section; 

17 ‘‘(ii) an attorney in order to obtain 

18 legal advice or assistance regarding the 

19 order; or 

20 ‘‘(iii) other persons as permitted by 

21 the Director of the Federal Bureau of In22 vestigation or the designee of the Director. 

23 ‘‘(B) APPLICATION.—A person to whom 

24 disclosure is made under subparagraph (A) 

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1 ments applicable to a person to whom an order 

2 is directed under this section in the same man3 ner as the person to whom the order is directed. 

4 ‘‘(C) NOTIFICATION.—Any person who dis5 closes to a person described in subparagraph 

6 (A) information otherwise subject to a non7 disclosure requirement shall notify the person of 

8 the applicable nondisclosure requirement. 

9 ‘‘(3) EXTENSION.—The Director of the Federal 

10 Bureau of Investigation, or a designee of the Direc11 tor (whose rank shall be no lower than Assistant 

12 Special Agent in Charge), may apply for renewals 

13 for the prohibition on disclosure of particular infor14 mation about the existence or contents of an order 

15 requiring the production of tangible things under 

16 this section for additional periods of not longer than 

17 1 year, unless the facts justify a longer period of 

18 nondisclosure. A nondisclosure requirement shall be 

19 renewed if a court having jurisdiction under para20 graph (4) determines that the application meets the 

21 requirements of subsection (b)(3). 

22 ‘‘(4) JURISDICTION.—An application for a re23 newal under this subsection shall be made to— 

24 ‘‘(A) a judge of the court established under 

25 section 103(a); or 


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1 ‘‘(B) a United States Magistrate Judge 

2 under chapter 43 of title 28, United States 

3 Code, who is publicly designated by the Chief 

4 Justice of the United States to have the power 

5 to hear applications and grant orders for the 

6 production of tangible things under this section 

7 on behalf of a judge of the court established 

8 under section 103(a).’’. 

9 (4) MINIMIZATION.—Section 501(g) of the For10 eign Intelligence Surveillance Act of 1978 (50 

11 U.S.C. 1861(g)) is amended— 

12 (A) in paragraph (1), by striking ‘‘Not 

13 later than’’ and all that follows and inserting 

14 ‘‘At or before the end of the period of time for 

15 the production of tangible things under an 

16 order approved under this section or at any 

17 time after the production of tangible things 

18 under an order approved under this section, a 

19 judge may assess compliance with the mini20 mization procedures by reviewing the cir21 cumstances under which information concerning 

22 United States persons was acquired, retained, 

23 or disseminated.’’; and 

24 (B) in paragraph (2)(A), by inserting ‘‘ac25 quisition and’’ after ‘‘to minimize the’’. 


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1 (5) USE OF INFORMATION.—Section 501(h) of 

2 the Foreign Intelligence Surveillance Act of 1978 

3 (50 U.S.C. 1861(h)) is amended to read as follows: 

4 ‘‘(h) USE OF INFORMATION.— 

5 ‘‘(1) IN GENERAL.— 

6 ‘‘(A) CONSENT.—Any tangible things or 

7 information acquired from an order under this 

8 section concerning any United States person 

9 may be used and disclosed by Federal officers 

10 and employees without the consent of the 

11 United States person only in accordance with 

12 the minimization procedures required under this 

13 section. 

14 ‘‘(B) USE AND DISCLOSURE.—No tangible 

15 things or information acquired under an order 

16 under this section may be used or disclosed by 

17 Federal officers or employees except for lawful 

18 purposes. 

19 ‘‘(2) DISCLOSURE FOR LAW ENFORCEMENT

20 PURPOSES.—No tangible things or information ac21 quired from an order under this section shall be dis22 closed for law enforcement purposes unless the dis23 closure is accompanied by a statement that the tan24 gible things or information, or any information de25 rived therefrom, may only be used in a criminal proVerDate Nov 24 2008 00:05 Sep 18, 2009 Jkt 079200 PO 00000 Frm 00053 Fmt 6652 Sfmt 6201 E:\BILLS\S1686.IS S1686

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1 ceeding with the advance authorization of the Attor2 ney General. 

3 ‘‘(3) NOTIFICATION OF INTENDED DISCLOSURE

4 BY THE UNITED STATES.—Whenever the United 

5 States intends to enter into evidence or otherwise 

6 use or disclose in any trial, hearing, or other pro7 ceeding in or before any court, department, officer, 

8 agency, regulatory body, or other authority of the 

9 United States against an aggrieved person any tan10 gible things or information obtained or derived from 

11 an order under this section, the United States shall, 

12 before the trial, hearing, or other proceeding or at 

13 a reasonable time before an effort to so disclose or 

14 so use the tangible things or information or submit 

15 them in evidence, notify the aggrieved person and 

16 the court or other authority in which the tangible 

17 things or information are to be disclosed or used 

18 that the United States intends to so disclose or so 

19 use the tangible things or information. 

20 ‘‘(4) NOTIFICATION OF INTENDED DISCLOSURE

21 BY STATE OR POLITICAL SUBDIVISION.—Whenever 

22 any State or political subdivision thereof intends to 

23 enter into evidence or otherwise use or disclose in 

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

25 any court, department, officer, agency, regulatory 


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1 body, or other authority of the State or political sub2 division thereof against an aggrieved person any tan3 gible things or information obtained or derived from 

4 an order issued under this section, the State or po5 litical subdivision thereof shall notify the aggrieved 

6 person, the court or other authority in which the 

7 tangible things or information are to be disclosed or 

8 used, and the Attorney General that the State or po9 litical subdivision thereof intends to so disclose or so 

10 use the tangible things or information. 

11 ‘‘(5) MOTION TO SUPPRESS.— 

12 ‘‘(A) IN GENERAL.—Any aggrieved person 

13 against whom evidence obtained or derived from 

14 an order issued under this section is to be, or 

15 has been, introduced or otherwise used or dis16 closed in any trial, hearing, or other proceeding 

17 in or before any court, department, officer, 

18 agency, regulatory body, or other authority of 

19 the United States, or a State or political sub20 division thereof, may move to suppress the evi21 dence obtained or derived from the order, as the 

22 case may be, on the grounds that— 

23 ‘‘(i) the tangible things or information 

24 were acquired in violation of the Constitu25 tion or laws of the United States; or 


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1 ‘‘(ii) the order was not issued in ac2 cordance with the requirements of this sec3 tion. 

4 ‘‘(B) TIMING.—A motion under subpara5 graph (A) shall be made before the trial, hear6 ing, or other proceeding unless there was no op7 portunity to make such a motion or the ag8 grieved person concerned was not aware of the 

9 grounds of the motion. 

10 ‘‘(6) JUDICIAL REVIEW.— 

11 ‘‘(A) IN GENERAL.—In a circumstance de12 scribed in subparagraph (B), a United States 

13 district court or, where the motion is made be14 fore another authority, the United States dis15 trict court in the same district as the authority 

16 shall, if the Attorney General files an affidavit 

17 under oath that disclosure would harm the na18 tional security of the United States, review in 

19 camera the application, order, and such other 

20 related materials relating to the order issued 

21 under this section as may be necessary to deter22 mine whether the order was lawfully authorized 

23 and served. 


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1 ‘‘(B) CIRCUMSTANCES.—A circumstance 

2 described in this subparagraph is a cir3 cumstance in which— 

4 ‘‘(i) a court or other authority is noti5 fied under paragraph (3) or (4); 

6 ‘‘(ii) a motion is made under para7 graph (5); or 

8 ‘‘(iii) any motion or request is made 

9 by an aggrieved person under any other 

10 statute or rule of the United States or any 

11 State before any court or other authority 

12 of the United States or any State to— 

13 ‘‘(I) discover or obtain applica14 tions, orders, or other materials relat15 ing to an order issued under this sec16 tion; or 

17 ‘‘(II) discover, obtain, or sup18 press evidence or information obtained 

19 or derived from an order issued under 

20 this section. 

21 ‘‘(C) DISCLOSURE.—In making a deter22 mination under subparagraph (A), unless the 

23 United States district court finds that disclo24 sure would not assist in determining any legal 

25 or factual issue pertinent to the case, the court 


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1 may disclose to the aggrieved person, the coun2 sel for the aggrieved person, or both, under the 

3 procedures and standards provided in the Clas4 sified Information Procedures Act (18 U.S.C. 

5 App.) or other appropriate security procedures 

6 and protective orders, portions of the applica7 tion, order, or other related materials, or evi8 dence or information obtained or derived from 

9 the order. 

10 ‘‘(7) EFFECT OF DETERMINATION OF LAWFUL11 NESS.— 

12 ‘‘(A) UNLAWFUL ORDERS.—If a United 

13 States district court determines under para14 graph (6) that an order was not authorized or 

15 served in compliance with the Constitution or 

16 laws of the United States, the court may sup17 press the evidence which was unlawfully ob18 tained or derived from the order or otherwise 

19 grant the motion of the aggrieved person. 

20 ‘‘(B) LAWFUL ORDERS.—If the court de21 termines that an order issued under this section 

22 was lawfully authorized and served, it shall 

23 deny the motion of the aggrieved person except 

24 to the extent that due process requires dis25 covery or disclosure. 


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1 ‘‘(8) BINDING FINAL ORDERS.—An order grant2 ing a motion or request under paragraph (6), a deci3 sion under this section that an order issued under 

4 this section was not lawful, and an order of a United 

5 States district court requiring review or granting 

6 disclosure of an application, order, or other mate7 rials relating to an order issued under this section 

8 shall be a final order and binding upon all courts of 

9 the United States and the several States, except an 

10 appeal or petition to a United States court of ap11 peals or the Supreme Court of the United States.’’. 

12 (6) DEFINITION.— 

13 (A) IN GENERAL.—Title V of the Foreign 

14 Intelligence Surveillance Act of 1978 (50 

15 U.S.C. 1861 et seq.) is amended by adding at 

16 the end the following: 

17 ‘‘SEC. 503. DEFINITIONS. 

18 ‘‘In this title, the following definitions apply: 

19 ‘‘(1) IN GENERAL.—Except as provided in this 

20 section, terms used in this title that are also used 

21 in title I shall have the meanings given those terms 

22 by section 101. 

23 ‘‘(2) AGGRIEVED PERSON.—The term ‘ag24 grieved person’ means any person whose tangible 


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1 things or information were acquired under an order 

2 issued under this title.’’. 

3 (B) TECHNICAL AND CONFORMING AMEND4 MENT.—The table of contents in the first sec5 tion of the Foreign Intelligence Surveillance Act 

6 of 1978 (50 U.S.C. 1861 et seq.) is amended 

7 by inserting after the item relating to section 

8 502 the following: 

‘‘Sec. 503. Definitions.’’. 

9 (b) JUDICIAL REVIEW OF SECTION 215 ORDERS.— 

10 Section 501(f) of the Foreign Intelligence Surveillance Act 

11 of 1978 (50 U.S.C. 1861) is amended to read as follows: 

12 ‘‘(f) JUDICIAL REVIEW.— 

13 ‘‘(1) ORDER FOR PRODUCTION.—Not later than 

14 the earlier of 21 days after the date of service upon 

15 any person of an order issued under subsection (c) 

16 and the return date specified in the order, the per17 son may file, in the court established under section 

18 103(a) or in the United States district court for the 

19 judicial district within which the person resides, is 

20 found, or transacts business, a petition for the court 

21 to modify or set aside the order. The period for com22 pliance with an order issued under subsection (c), or 

23 any portion of the order, shall be tolled while a peti24 tion under this paragraph is pending in the court. 

25 A petition under this paragraph shall specify each 


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1 ground upon which the petitioner relies in seeking 

2 relief, and may be based upon any failure of the 

3 order issued under subsection (c) to comply with this 

4 section or upon any constitutional or other legal 

5 right or privilege of the person. 

6 ‘‘(2) NONDISCLOSURE ORDER.— 

7 ‘‘(A) IN GENERAL.—A person prohibited 

8 from disclosing information under subsection 

9 (d) may file, in the court established under sec10 tion 103(a) or in the United States district 

11 court for the judicial district within which the 

12 person resides, is found, or transacts business, 

13 a petition for the court to set aside the non14 disclosure requirement. A petition under this 

15 subparagraph shall specify each ground upon 

16 which the petitioner relies in seeking relief, and 

17 may be based upon any failure of the nondisclo18 sure requirement to comply with this section or 

19 upon any constitutional or other legal right or 

20 privilege of the person. 

21 ‘‘(B) STANDARD.—The court shall modify 

22 or set aside a nondisclosure requirement unless 

23 the court determines that— 

24 ‘‘(i) there is reason to believe that dis25 closure of the information subject to the 


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1 nondisclosure requirement during the ap2 plicable time period will result in— 

3 ‘‘(I) endangering the life or phys4 ical safety of any person; 

5 ‘‘(II) flight from prosecution; 

6 ‘‘(III) destruction of or tam7 pering with evidence; 

8 ‘‘(IV) intimidation of potential 

9 witnesses; 

10 ‘‘(V) interference with diplomatic 

11 relations; or 

12 ‘‘(VI) otherwise seriously endan13 gering the national security of the 

14 United States by alerting a target, an 

15 associate of a target, or the foreign 

16 power of which the target is an agent, 

17 of the interest of the Government in 

18 the target; 

19 ‘‘(ii) the harm identified under clause 

20 (i) relates to the authorized investigation 

21 to which the tangible things sought are rel22 evant; and 

23 ‘‘(iii) the nondisclosure requirement is 

24 narrowly tailored to address the specific 

25 harm identified under clause (i). 


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1 ‘‘(3) RULEMAKING.— 

2 ‘‘(A) IN GENERAL.—Not later than 180 

3 days after the date of enactment of the JUS4 TICE Act, the court established under section 

5 103(a) shall comply with section 103(g) by es6 tablishing any rules and procedures and taking 

7 any actions as are reasonably necessary to ad8 minister the responsibilities of the court under 

9 this subsection. 

10 ‘‘(B) REPORTING.—Not later than 30 days 

11 after the date on which the court promulgates 

12 rules and procedures under subparagraph (A), 

13 the court established under section 103(a) shall 

14 transmit a copy of the rules and procedures, in 

15 an unclassified for to the greatest extent pos16 sible (with a classified annex, if necessary), to 

17 the persons and entities listed in section 

18 103(g)(2). 

19 ‘‘(4) DISCLOSURES TO PETITIONERS.—In mak20 ing determinations under this subsection, unless the 

21 court finds that disclosure would not assist in deter22 mining any legal or factual issue pertinent to the 

23 case, the court may disclose to the petitioner, the 

24 counsel for the petitioner, or both, under the proce25 dures and standards provided in the Classified InforVerDate Nov 24 2008 00:05 Sep 18, 2009 Jkt 079200 PO 00000 Frm 00063 Fmt 6652 Sfmt 6201 E:\BILLS\S1686.IS S1686

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1 mation Procedures Act (18 U.S.C. App.) or other 

2 appropriate security procedures and protective or3 ders, portions of the application, order, or other re4 lated materials.’’. 

5 (c) SUNSET REPEAL.—Section 102(b) of the USA 

6 PATRIOT Improvement and Reauthorization Act of 2005 

7 (Public Law 109–177; 50 U.S.C. 1805 note, 50 U.S.C. 

8 1861 note, and 50 U.S.C. 1862 note) is repealed. 

9 SEC. 108. TECHNICAL AND CONFORMING AMENDMENTS. 

10 (a) TITLE 18.—Section 1510(e) of title 18, United 

11 States Code, is amended by striking ‘‘Whoever,’’ and all 

12 that follows through ‘‘knowingly’’ and inserting ‘‘Whoever, 

13 having been notified of the applicable disclosure prohibi14 tions or confidentiality requirements of section 2709 of 

15 this title, section 626 of the Fair Credit Reporting Act 

16 (15 U.S.C. 1681u), section 1114 of the Right to Financial 

17 Privacy Act of 1978 (12 U.S.C. 3414), or section 802 of 

18 the National Security Act of 1947 (50 U.S.C. 436), know19 ingly’’. 

20 (b) OTHER LAW.—Section 507(b) of the National Se21 curity Act of 1947 (50 U.S.C. 415b(b)) is amended— 

22 (1) by striking paragraphs (4) and (5); and 

23 (2) by redesignating paragraph (6) as para24 graph (4). 


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1 TITLE II—REASONABLE SAFE2 GUARDS TO PROTECT THE 

3 PRIVACY OF AMERICANS’ 

4 HOMES 

5 SEC. 201. LIMITATION ON AUTHORITY TO DELAY NOTICE 

6 OF SEARCH WARRANTS. 

7 Section 3103a of title 18, United States Code, is 

8 amended— 

9 (1) in subsection (b)— 

10 (A) in paragraph (1), by striking ‘‘may 

11 have an adverse result (as defined in section 

12 2705, except if the adverse results consist only 

13 of unduly delaying a trial)’’ and inserting ‘‘will 

14 endanger the life or physical safety of an indi15 vidual, result in flight from prosecution, result 

16 in the destruction of or tampering with the evi17 dence sought under the warrant, or result in in18 timidation of potential witnesses’’; and 

19 (B) in paragraph (3), by striking ‘‘30 

20 days’’ and all that follows and inserting ‘‘7 days 

21 after the date of its execution.’’; 

22 (2) in subsection (c), by striking ‘‘for good 

23 cause shown’’ and all that follows and inserting 

24 ‘‘upon application of the Attorney General, the Dep25 uty Attorney General, or an Associate Attorney GenVerDate Nov 24 2008 00:05 Sep 18, 2009 Jkt 079200 PO 00000 Frm 00065 Fmt 6652 Sfmt 6201 E:\BILLS\S1686.IS S1686

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1 eral, for additional periods of not more than 21 days 

2 for each application, if the court finds, for each ap3 plication, reasonable cause to believe that notice of 

4 the execution of the warrant will endanger the life 

5 or physical safety of an individual, result in flight 

6 from prosecution, result in the destruction of or 

7 tampering with the evidence sought under the war8 rant, or result in intimidation of potential wit9 nesses.’’; 

10 (3) by redesignating subsection (d) as sub11 section (e); and 

12 (4) by inserting after subsection (c) the fol13 lowing: 

14 ‘‘(d) PROHIBITION ON USE AS EVIDENCE.—If any 

15 property or material has been seized under subsection (b) 

16 and notice has been delayed, the property or material and 

17 any evidence derived therefrom may not be received in evi18 dence in any trial, hearing, or other proceeding in or be19 fore any court, grand jury, department, officer, agency, 

20 regulatory body, legislative committee, or other authority 

21 of the United States, a State, or a political subdivision 

22 thereof if the property or material was obtained in viola23 tion of this section, or if notice required by this section 

24 or by a warrant issued under this section was not provided 

25 or was not timely provided.’’. 


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1 TITLE III—REASONABLE SAFE2 GUARDS TO PROTECT THE 

3 PRIVACY OF AMERICANS’ 

4 COMMUNICATIONS 

5 SEC. 301. LIMITATIONS ON ROVING WIRETAPS UNDER FOR6 EIGN INTELLIGENCE SURVEILLANCE ACT. 

7 Section 105(c) of the Foreign Intelligence Surveil8 lance Act of 1978 (50 U.S.C. 1805(c)) is amended— 

9 (1) in paragraph (1), by striking subparagraphs 

10 (A) and (B) and inserting the following: 

11 ‘‘(A)(i) the identity of the target of the elec12 tronic surveillance, if known; or 

13 ‘‘(ii) if the identity of the target is not known, 

14 a description of the specific target and the nature 

15 and location of the facilities and places at which the 

16 electronic surveillance will be directed; 

17 ‘‘(B)(i) the nature and location of each of the 

18 facilities or places at which the electronic surveil19 lance will be directed, if known; or 

20 ‘‘(ii) if any of the facilities or places are not 

21 known, the identity of the target;’’; and 

22 (2) in paragraph (2)— 

23 (A) by redesignating subparagraphs (B) 

24 through (D) as subparagraphs (C) through (E), 

25 respectively; and 


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1 (B) by inserting after subparagraph (A) 

2 the following: 

3 ‘‘(B) in cases where the facility or place at 

4 which the electronic surveillance will be directed 

5 is not known at the time the order is issued, 

6 that the electronic surveillance be conducted 

7 only for such time as it is reasonable to pre8 sume that the target of the surveillance is or 

9 was reasonably proximate to the particular fa10 cility or place;’’. 

11 SEC. 302. PRIVACY PROTECTIONS FOR PEN REGISTERS 

12 AND TRAP AND TRACE DEVICES. 

13 (a) CRIMINAL AUTHORITY.— 

14 (1) APPLICATION FOR AN ORDER.—Section 

15 3122(b) of title 18, United States Code, is amended 

16 by striking paragraph (2) and inserting the fol17 lowing: 

18 ‘‘(2) a statement by the applicant that the in19 formation likely to be obtained is— 

20 ‘‘(A) relevant to an ongoing criminal inves21 tigation being conducted by that agency; and 

22 ‘‘(B) there are specific and articulable 

23 facts providing reason to believe that the infor24 mation— 


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1 ‘‘(i) pertains to an individual who is 

2 the subject of an ongoing criminal inves3 tigation; 

4 ‘‘(ii) pertains to an individual who has 

5 been in contact with, or otherwise directly 

6 linked to, an individual who is the subject 

7 of an ongoing criminal investigation; or 

8 ‘‘(iii) pertain to the activities of an in9 dividual who is the subject of an ongoing 

10 criminal investigation, where those activi11 ties are the subject of an ongoing criminal 

12 investigation, and obtaining the records is 

13 the least intrusive means that could be 

14 used to identify persons believed to be in15 volved in the activities.’’. 

16 (2) ISSUANCE OF AN ORDER.—Section 3123(a) 

17 of title 18, United States Code, is amended— 

18 (A) in paragraph (1), by striking ‘‘the at19 torney for the Government has certified to the 

20 court that the information likely to be obtained 

21 by such installation and use is relevant to an 

22 ongoing criminal investigation.’’ and inserting 

23 ‘‘the application meets the requirements of sec24 tion 3122.’’; and 


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1 (B) in paragraph (2), by striking ‘‘the 

2 State law enforcement or investigative officer’’ 

3 and all that follows and inserting ‘‘the applica4 tion meets the requirements of section 3122.’’. 

5 (3) REPORTING.—Section 3126 of title 18, 

6 United States Code, is amended— 

7 (A) in the matter preceding paragraph (1), 

8 by striking ‘‘law enforcement agencies of the 

9 Department of Justice’’ and inserting ‘‘attor10 neys for the Government’’; 

11 (B) in paragraph (4), by striking ‘‘and’’ at 

12 the end; 

13 (C) in paragraph (5), by striking the pe14 riod and inserting a semicolon; 

15 (D) in the matter preceding paragraph (1), 

16 by striking ‘‘The Attorney General’’ and insert17 ing the following: 

18 ‘‘(a) REPORT TO CONGRESS.—The Attorney Gen19 eral’’; and 

20 (E) by adding at the end the following: 

21 ‘‘(6) whether the application for the order and 

22 the applications for any extensions were granted as 

23 applied for, modified, or denied; 


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1 ‘‘(7) the specific types of dialing, routing, ad2 dressing, or signaling information sought in the ap3 plication and obtained with the order; and 

4 ‘‘(8) a summary of any litigation to which the 

5 Government is or was a party regarding the inter6 pretation of this chapter. 

7 ‘‘(b) PUBLIC REPORT.—The Attorney General shall 

8 annually make public a full and complete report con9 cerning the number of applications for pen register orders 

10 and orders for trap and trace devices applied for under 

11 this chapter and the number of the orders and extensions 

12 of the orders granted or denied under this chapter during 

13 the preceding calendar year. Each report under this sub14 section shall include a summary and analysis of the data 

15 required to be reported to Congress under subsection 

16 (a).’’. 

17 (4) NOTICE.—Section 3123 of title 18, United 

18 States Code, is amended by adding at the end the 

19 following: 

20 ‘‘(e) NOTICE.— 

21 ‘‘(1) INVENTORY.—A court that receives an ap22 plication for an order or extension under section 

23 3122(a) shall cause to be served on the persons 

24 named in the application, and any other party to 

25 communications the court determines should receive 


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•S 1686 IS

1 notice in the interest of justice, an inventory, includ2 ing— 

3 ‘‘(A) the fact of the application for an 

4 order or extension under section 3122(a) and 

5 whether the court granted or denied the appli6 cation; and 

7 ‘‘(B) if the order or extension was grant8 ed— 

9 ‘‘(i) the date of the entry of the order 

10 or extension and the period of authorized, 

11 approved, or disapproved use of the pen 

12 register or trap and trace device; 

13 ‘‘(ii) whether a pen register or trap 

14 and trace device was installed or used dur15 ing the period authorized; and 

16 ‘‘(iii) the specific types of dialing, 

17 routing, addressing, or signaling informa18 tion sought in the application and collected 

19 by the pen register or trap and trace de20 vice. 

21 ‘‘(2) TIMING.—The court shall serve notice 

22 under paragraph (1) within a reasonable time, but 

23 not later than 90 days after— 


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1 ‘‘(A) the date of the filing of the applica2 tion for an order or extension under section 

3 3122(a) that is denied; or 

4 ‘‘(B) the date on which an order, or exten5 sions thereof, that is granted terminates. 

6 ‘‘(3) DELAY.—The court may issue an ex parte 

7 order postponing the service of the inventory re8 quired under paragraph (1) upon a showing of good 

9 cause by an attorney for the Government. 

10 ‘‘(4) INSPECTION.—Upon the filing of a motion, 

11 the court may make available for inspection by a 

12 person served under paragraph (1), or counsel for 

13 the person, such portions of the collected commu14 nications, applications, and orders as the court de15 termines to be in the interest of justice.’’. 

16 (b) FOREIGN INTELLIGENCE AUTHORITY.— 

17 (1) APPLICATION.—Section 402(c) of the For18 eign Intelligence Surveillance Act of 1978 (50 

19 U.S.C. 1842(c)) is amended— 

20 (A) in paragraph (1), buy striking ‘‘and’’ 

21 at the end; and 

22 (B) by striking paragraph (2) and insert23 ing the following: 

24 ‘‘(2) a statement by the applicant that— 


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1 ‘‘(A) the records sought are relevant to an 

2 ongoing and authorized national security inves3 tigation (other than an assessment (as defined 

4 in section 2709 of title 18, United States 

5 Code)); and 

6 ‘‘(B) there are specific and articulable 

7 facts providing reason to believe that the 

8 records— 

9 ‘‘(i) pertain to a suspected agent of a 

10 foreign power or an individual who is the 

11 subject of an ongoing and authorized na12 tional security investigation (other than an 

13 assessment); 

14 ‘‘(ii) pertain to an individual who has 

15 been in contact with, or otherwise directly 

16 linked to, a suspected agent of a foreign 

17 power or an individual who is the subject 

18 of an ongoing and authorized national se19 curity investigation (other than an assess20 ment); or 

21 ‘‘(iii) pertain to the activities of a sus22 pected agent of a foreign power, where 

23 those activities are the subject of an ongo24 ing and authorized national security inves25 tigation (other than an assessment), and 


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1 obtaining the records is the least intrusive 

2 means that could be used to identify per3 sons believed to be involved in the activi4 ties; and 

5 ‘‘(3) a statement of proposed minimization pro6 cedures.’’. 

7 (2) MINIMIZATION.— 

8 (A) DEFINITION.—Section 401 of the For9 eign Intelligence Surveillance Act of 1978 (50 

10 U.S.C. 1841) is amended by adding at the end 

11 the following: 

12 ‘‘(4) The term ‘minimization procedures’ 

13 means— 

14 ‘‘(A) specific procedures that are reason15 ably designed in light of the purpose and tech16 nique of an order for the installation and use 

17 of a pen register or trap and trace device, to 

18 minimize the acquisition and retention, and pro19 hibit the dissemination, of nonpublicly available 

20 information concerning unconsenting United 

21 States persons consistent with the need of the 

22 United States to obtain, produce, and dissemi23 nate foreign intelligence information; 

24 ‘‘(B) procedures that require that nonpub25 licly available information, which is not foreign 


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1 intelligence information, as defined in section 

2 101(e)(1), shall not be disseminated in a man3 ner that identifies any United States person, 

4 without such person’s consent, unless such per5 son’s identity is necessary to understand foreign 

6 intelligence information or assess its impor7 tance; and 

8 ‘‘(C) notwithstanding subparagraphs (A) 

9 and (B), procedures that allow for the retention 

10 and dissemination of information that is evi11 dence of a crime which has been, is being, or 

12 is about to be committed and that is to be re13 tained or disseminated for law enforcement pur14 poses.’’. 

15 (B) PEN REGISTERS AND TRAP AND TRACE

16 DEVICES.—Section 402 of the Foreign Intel17 ligence Surveillance Act of 1978 (50 U.S.C. 

18 1842) is amended— 

19 (i) in subsection (d)— 

20 (I) in paragraph (1), by inserting 

21 ‘‘, and that the proposed minimization 

22 procedures meet the definition of 

23 minimization procedures under this 

24 title’’ before the period at the end; 

25 and 


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1 (II) in paragraph (2)(B)— 

2 (aa) in clause (ii)(II), by 

3 striking ‘‘and’’ after the semi4 colon; and 

5 (bb) by adding at the end 

6 the following: 

7 ‘‘(iv) the minimization procedures be 

8 followed; and’’; and 

9 (ii) by adding at the end the fol10 lowing: 

11 ‘‘(h) At or before the end of the period of time for 

12 which the installation and use of a pen register or trap 

13 and trace device is approved under an order or an exten14 sion under this section, the judge may assess compliance 

15 with the minimization procedures by reviewing the cir16 cumstances under which information concerning United 

17 States persons was acquired, retained, or disseminated.’’. 

18 (C) EMERGENCIES.—Section 403 of the 

19 Foreign Intelligence Surveillance Act of 1978 

20 (50 U.S.C. 1843) is amended— 

21 (i) by redesignating subsection (c) as 

22 (d); and 

23 (ii) by inserting after subsection (b) 

24 the following: 


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1 ‘‘(c) If the Attorney General authorizes the emer2 gency installation and use of a pen register or trap and 

3 trace device under this section, the Attorney General shall 

4 require that the minimization procedures required by this 

5 title for the issuance of a judicial order be followed.’’. 

6 (D) USE OF INFORMATION.—Section 

7 405(a) of the Foreign Intelligence Surveillance 

8 Act of 1978 (50 U.S.C. 1845(a)) is amended by 

9 striking ‘‘provisions of’’ and inserting ‘‘mini10 mization procedures required under’’. 

11 SEC. 303. REPEAL OF TELECOMMUNICATIONS IMMUNITY. 

12 (a) IN GENERAL.—The Foreign Intelligence Surveil13 lance Act of 1978 is amended by striking title VIII (50 

14 U.S.C. 1885 et seq.). 

15 (b) RULE OF CONSTRUCTION.—Nothing in the 

16 amendments made by this section shall be construed to 

17 affect any limitation on liability otherwise provided under 

18 titles I through VII of the Foreign Intelligence Surveil19 lance Act of 1978 (50 U.S.C. 1801 et seq.), title 18, 

20 United States Code, or the Protect America Act of 2007 

21 (Public Law 110–55; 121 Stat. 552) or the amendments 

22 made by that Act. 

23 (c) TECHNICAL AND CONFORMING AMENDMENT.— 

24 The table of contents in the first section of the Foreign 

25 Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 


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1 seq.) is amended by striking the items relating to title VIII 

2 and sections 801, 802, 803, and 804. 

3 SEC. 304. PROHIBITION ON BULK COLLECTION UNDER FISA 

4 AMENDMENTS ACT. 

5 Section 702(g)(2)(A) of the Foreign Intelligence Sur6 veillance Act of 1978 (50 U.S.C. 1881a(g)(2)(A)) is 

7 amended— 

8 (1) in clause (vi), by striking ‘‘and’’ at the end; 

9 (2) by redesignating clause (vii) as clause (viii); 

10 and 

11 (3) by inserting after clause (vi) the following: 

12 ‘‘(vii) the acquisition of the contents 

13 (as that term is defined in section 2510(8) 

14 of title 18, United States Code)) of any 

15 communication is limited to communica16 tions to which any party is an individual 

17 target (which shall not be limited to known 

18 or named individuals) who is reasonably 

19 believed to be located outside of the United 

20 States, and a significant purpose of the ac21 quisition of the communications of the tar22 get is to obtain foreign intelligence infor23 mation; and’’. 


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1 SEC. 305. PROHIBITION ON REVERSE TARGETING UNDER 

2 FISA AMENDMENTS ACT. 

3 Section 702 of the Foreign Intelligence Surveillance 

4 Act of 1978 (50 U.S.C. 1881a) is amended— 

5 (1) in subsection (b)(2), by striking ‘‘the pur6 pose’’ and all that follows and inserting the fol7 lowing: ‘‘a significant purpose of the acquisition is to 

8 acquire the communications of a particular, known 

9 person reasonably believed to be located in the 

10 United States, except in accordance with title I;’’; 

11 (2) in subsection (d)(1)(A)— 

12 (A) by striking ‘‘ensure that’’ and insert 

13 the following: ‘‘ensure— 

14 ‘‘(i) that’’; and 

15 (B) by adding at the end the following: 

16 ‘‘(ii) that an application is filed under 

17 title I, if otherwise required, when a sig18 nificant purpose of an acquisition author19 ized under subsection (a) is to acquire the 

20 communications of a particular, known 

21 person reasonably believed to be located in 

22 the United States; and’’; 

23 (3) in subsection (g)(2)(A)(i)(I)— 

24 (A) by striking ‘‘ensure that’’ and insert 

25 the following: ‘‘ensure— 

26 ‘‘(aa) that’’; and 


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1 (B) by adding at the end the following: 

2 ‘‘(bb) that an application is 

3 filed under title I, if otherwise re4 quired, when a significant pur5 pose of an acquisition authorized 

6 under subsection (a) is to acquire 

7 the communications of a par8 ticular, known person reasonably 

9 believed to be located in the 

10 United States; and’’; and 

11 (4) in subsection (i)(2)(B)(i)— 

12 (A) by striking ‘‘ensure that’’ and insert 

13 the following: ‘‘ensure— 

14 ‘‘(I) that’’; and 

15 (B) by adding at the end the following: 

16 ‘‘(II) that an application is filed 

17 under title I, if otherwise required, 

18 when a significant purpose of an ac19 quisition authorized under subsection 

20 (a) is to acquire the communications 

21 of a particular, known person reason22 ably believed to be located in the 

23 United States; and’’. 


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1 SEC. 306. LIMITS ON USE OF UNLAWFULLY OBTAINED IN2 FORMATION UNDER FISA AMENDMENTS ACT. 

3 Section 702(i)(3) of the Foreign Intelligence Surveil4 lance Act of 1978 (50 U.S.C. 1881a(i)(3)) is amended by 

5 striking subparagraph (B) and inserting the following: 

6 ‘‘(B) CORRECTION OF DEFICIENCIES.— 

7 ‘‘(i) IN GENERAL.—If the Court finds 

8 that a certification required by subsection 

9 (g) does not contain all of the required ele10 ments, or that the procedures required by 

11 subsections (d) and (e) are not consistent 

12 with the requirements of those subsections 

13 or the fourth amendment to the Constitu14 tion of the United States, the Court shall 

15 issue an order directing the Government 

16 to, at the Government’s election and to the 

17 extent required by the order of the 

18 Court— 

19 ‘‘(I) correct any deficiency identi20 fied by the order of the Court not 

21 later than 30 days after the date on 

22 which the Court issues the order; or 

23 ‘‘(II) cease the acquisition au24 thorized under subsection (a). 

25 ‘‘(ii) LIMITATION ON USE OF INFOR26 MATION.— 


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1 ‘‘(I) IN GENERAL.—Except as 

2 provided in subclause (II), no infor3 mation obtained or evidence derived 

4 from an acquisition under clause (i)(I) 

5 concerning any United States person 

6 shall be received in evidence or other7 wise disclosed in any trial, hearing, or 

8 other proceeding in or before any 

9 court, grand jury, department, office, 

10 agency, regulatory body, legislative 

11 committee, or other authority of the 

12 United States, a State, or political 

13 subdivision thereof, and no informa14 tion concerning any United States 

15 person acquired from the acquisition 

16 shall subsequently be used or dis17 closed in any other manner by Fed18 eral officers or employees without the 

19 consent of the United States person, 

20 except with the approval of the Attor21 ney General if the information indi22 cates a threat of death or serious bod23 ily harm to any person. 

24 ‘‘(II) EXCEPTION.—If the Gov25 ernment corrects any deficiency idenVerDate Nov 24 2008 00:05 Sep 18, 2009 Jkt 079200 PO 00000 Frm 00083 Fmt 6652 Sfmt 6201 E:\BILLS\S1686.IS S1686

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1 tified by the order of the Court under 

2 clause (i), the Court may permit the 

3 use or disclosure of information ac4 quired before the date of the correc5 tion under such minimization proce6 dures as the Court shall establish for 

7 purposes of this clause.’’. 

8 SEC. 307. PRIVACY PROTECTIONS FOR INTERNATIONAL 

9 COMMUNICATIONS OF AMERICANS COL10 LECTED UNDER FISA AMENDMENTS ACT. 

11 (a) IN GENERAL.—Title VII of the Foreign Intel12 ligence Surveillance Act of 1978 (50 U.S.C. 1881) is 

13 amended by adding at the end the following: 

14 ‘‘SEC. 709. ADDITIONAL SAFEGUARDS FOR COMMUNICA15 TIONS OF PERSONS IN THE UNITED STATES. 

16 ‘‘(a) LIMITATIONS ON ACQUISITION OF COMMUNICA17 TIONS.— 

18 ‘‘(1) LIMITATION.—Except as authorized under 

19 title I or paragraph (2), no communication shall be 

20 acquired under this title if the Government knows 

21 before or at the time of acquisition that the commu22 nication is to or from a person reasonably believed 

23 to be located in the United States. 

24 ‘‘(2) EXCEPTION.— 


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1 ‘‘(A) IN GENERAL.—In addition to any au2 thority under title I to acquire communications 

3 described in paragraph (1), the communications 

4 may be acquired if— 

5 ‘‘(i) there is reason to believe that the 

6 communication concerns international ter7 rorist activities directed against the United 

8 States, or activities in preparation there9 for; 

10 ‘‘(ii) there is probable cause to believe 

11 that the target reasonably believed to be 

12 located outside the United States is an 

13 agent of a foreign power and the foreign 

14 power is a group engaged in international 

15 terrorism or activities in preparation there16 for; or 

17 ‘‘(iii) there is reason to believe that 

18 the acquisition is necessary to prevent 

19 death or serious bodily harm. 

20 ‘‘(B) ACCESS TO COMMUNICATIONS.— 

21 Communications acquired under this paragraph 

22 shall be treated in accordance with subsection 

23 (b). 

24 ‘‘(3) PROCEDURES FOR DETERMINATIONS BE25 FORE OR AT THE TIME OF ACQUISITION.— 


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1 ‘‘(A) SUBMISSION.—Not later than 120 

2 days after the date of enactment of the JUS3 TICE Act, the Attorney General, in consulta4 tion with the Director of National Intelligence, 

5 shall submit to the Foreign Intelligence Surveil6 lance Court for approval procedures for deter7 mining before or at the time of acquisition, 

8 where reasonably practicable, whether a com9 munication is to or from a person reasonably 

10 believed to be located in the United States and 

11 whether the exception under paragraph (2) ap12 plies to that communication. 

13 ‘‘(B) REVIEW.—The Foreign Intelligence 

14 Surveillance Court shall approve the procedures 

15 submitted under subparagraph (A) if the proce16 dures are reasonably designed to determine be17 fore or at the time of acquisition, where reason18 ably practicable, whether a communication is to 

19 or from a person reasonably believed to be lo20 cated in the United States and whether the ex21 ception under paragraph (2) applies to that 

22 communication. 

23 ‘‘(C) PROCEDURES DO NOT MEET RE24 QUIREMENTS.—If the Foreign Intelligence Sur25 veillance Court concludes that the procedures 


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1 submitted under subparagraph (A) do not meet 

2 the requirements of subparagraph (B), the 

3 Court shall enter an order so stating and pro4 vide a written statement for the record of the 

5 reasons for the determination. The Government 

6 may appeal an order under this subparagraph 

7 to the Foreign Intelligence Surveillance Court 

8 of Review. 

9 ‘‘(D) USE OF PROCEDURES.—If the For10 eign Intelligence Surveillance Court approves 

11 procedures under this paragraph, the Govern12 ment shall use the procedures in any acquisition 

13 of communications under this title. 

14 ‘‘(E) REVISIONS.—The Attorney General, 

15 in consultation with the Director of National 

16 Intelligence, may submit new or amended proce17 dures to the Foreign Intelligence Surveillance 

18 Court for review under this paragraph. 

19 ‘‘(F) RELIABILITY.—If the Government 

20 obtains new information relating to the reli21 ability of procedures approved under this para22 graph or the availability of more reliable proce23 dures, the Attorney General shall submit to the 

24 Foreign Intelligence Surveillance Court the in25 formation. 


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1 ‘‘(b) LIMITATIONS ON ACCESS TO COMMUNICA2 TIONS.— 

3 ‘‘(1) IN GENERAL.—At such time as the Gov4 ernment can reasonably determine that a commu5 nication acquired under this title (including a com6 munication acquired under subsection (a)(2)) is to 

7 or from a person reasonably believed to be located 

8 in the United States, the communication shall be 

9 segregated or specifically designated and no person 

10 shall access the communication, except in accordance 

11 with title I or this section. 

12 ‘‘(2) EXCEPTIONS.—In addition to any author13 ity under title I, including the emergency provision 

14 in section 105(f), a communication described in 

15 paragraph (1) may be accessed and disseminated for 

16 a period of not longer than 7 days if— 

17 ‘‘(A)(i) there is reason to believe that the 

18 communication concerns international terrorist 

19 activities directed against the United States, or 

20 activities in preparation therefor; 

21 ‘‘(ii) there is probable cause to believe that 

22 the target reasonably believed to be located out23 side the United States is an agent of a foreign 

24 power and the foreign power is a group engaged 


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1 in international terrorism or activities in prepa2 ration therefor; or 

3 ‘‘(iii) there is reason to believe that the ac4 cess is necessary to prevent death or serious 

5 bodily harm; 

6 ‘‘(B) the Attorney General notifies the 

7 Foreign Intelligence Surveillance Court imme8 diately of the access; and 

9 ‘‘(C) not later than 7 days after the date 

10 the access is initiated, the Attorney General— 

11 ‘‘(i) makes an application for an order 

12 under title I; or 

13 ‘‘(ii) submits to the Foreign Intel14 ligence Surveillance Court a document 

15 that— 

16 ‘‘(I) certifies that— 

17 ‘‘(aa) there is reason to be18 lieve that the communication con19 cerns international terrorist ac20 tivities directed against the 

21 United States, or activities in 

22 preparation therefor; 

23 ‘‘(bb) there is probable 

24 cause to believe that the target 

25 reasonably believed to be located 


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1 outside the United States is an 

2 agent of a foreign power and the 

3 foreign power is a group engaged 

4 in international terrorism or ac5 tivities in preparation therefor; or 

6 ‘‘(cc) there is reason to be7 lieve that the access is necessary 

8 to prevent death or serious bodily 

9 harm; and 

10 ‘‘(II) identifies the target of the 

11 collection, the party to the commu12 nication who is in the United States if 

13 known, and the extent to which infor14 mation relating to the communication 

15 has been disseminated. 

16 ‘‘(3) DENIAL OF COURT ORDER.—If an applica17 tion for a court order described in paragraph 

18 (2)(C)(i) is made and is not approved, the Attorney 

19 General shall submit to the Foreign Intelligence Sur20 veillance Court, not later than 7 days after the date 

21 of the denial of the application, the document de22 scribed in paragraph (2)(C)(ii). 

23 ‘‘(4) ADDITIONAL COURT AUTHORITIES.— 

24 ‘‘(A) IN GENERAL.—The Foreign Intel25 ligence Surveillance Court may— 


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1 ‘‘(i) limit access to communications 

2 described in paragraph (1) relating to a 

3 particular target if the Court determines 

4 that any certification submitted under 

5 paragraph (2)(C)(ii)(I) with respect to that 

6 target is clearly erroneous; and 

7 ‘‘(ii) require the Attorney General to 

8 provide the factual basis for a certification 

9 submitted under paragraph (2)(C)(ii)(I), if 

10 the Court determines it would aid the 

11 Court in conducting review under this sub12 section. 

13 ‘‘(B) FISC ACCESS.—The Foreign Intel14 ligence Surveillance Court shall have access to 

15 any communications that have been segregated 

16 or specifically designated under paragraph (1) 

17 and any information the use of which has been 

18 limited under paragraph (5). 

19 ‘‘(5) FAILURE TO NOTIFY.— 

20 ‘‘(A) IN GENERAL.—In the circumstances 

21 described in subparagraph (B), access to a com22 munication shall terminate, and no information 

23 obtained or evidence derived from the access 

24 concerning any United States person shall be 

25 received in evidence or otherwise disclosed in 


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1 any trial, hearing, or other proceeding in or be2 fore any court, grand jury, department, office, 

3 agency, regulatory body, legislative committee, 

4 or other authority of the United States, a State, 

5 or political subdivision thereof, and no informa6 tion concerning any United States person ac7 quired from the access shall subsequently be 

8 used or disclosed in any manner by Federal of9 ficers or employees without the consent of the 

10 person, except with the approval of the Attor11 ney General if the information indicates a 

12 threat of death or serious bodily harm to any 

13 person, or if a court order is obtained under 

14 title I. 

15 ‘‘(B) CIRCUMSTANCES.—The cir16 cumstances described in this subparagraph are 

17 circumstances in which— 

18 ‘‘(i) as of the date that is 7 days after 

19 the date on which access to a communica20 tion is initiated under paragraph (2), a 

21 court order described in paragraph 

22 (2)(C)(i) has not been sought and the doc23 ument described in paragraph (2)(C)(ii) 

24 has not been submitted; or 


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1 ‘‘(ii) as of the date that is 7 days 

2 after an application for a court order de3 scribed in paragraph (2)(C)(i) is denied, 

4 the document described in paragraph 

5 (2)(C)(ii) is not submitted in accordance 

6 with paragraph (3). 

7 ‘‘(6) EVIDENCE OF A CRIME.—Information or 

8 communications subject to this subsection may be 

9 disseminated for law enforcement purposes if it is 

10 evidence that a crime has been, is being, or is about 

11 to be committed, if dissemination is made in accord12 ance with section 106(b). 

13 ‘‘(7) PROCEDURES FOR DETERMINATIONS

14 AFTER ACQUISITION.— 

15 ‘‘(A) IN GENERAL.—Not later than 120 

16 days after the date of enactment of the JUS17 TICE Act, the Attorney General, in consulta18 tion with the Director of National Intelligence, 

19 shall submit to the Foreign Intelligence Surveil20 lance Court for approval procedures for deter21 mining, where reasonably practicable, whether a 

22 communication acquired under this title is to or 

23 from a person reasonably believed to be in the 

24 United States. 


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1 ‘‘(B) REVIEW.—The Foreign Intelligence 

2 Surveillance Court shall approve the procedures 

3 submitted under subparagraph (A) if the proce4 dures are reasonably designed to determine, 

5 where reasonably practicable, whether a com6 munication acquired under this title is a com7 munication to or from a person reasonably be8 lieved to be located in the United States. 

9 ‘‘(C) PROCEDURES DO NOT MEET RE10 QUIREMENTS.—If the Foreign Intelligence Sur11 veillance Court concludes that the procedures 

12 submitted under subparagraph (A) do not meet 

13 the requirements of subparagraph (B), the 

14 Court shall enter an order so stating and pro15 vide a written statement for the record of the 

16 reasons for the determination. The Government 

17 may appeal an order under this subparagraph 

18 to the Foreign Intelligence Surveillance Court 

19 of Review. 

20 ‘‘(D) USE OF PROCEDURES.—If the For21 eign Intelligence Surveillance Court approves 

22 procedures under this paragraph, the Govern23 ment shall use the procedures for any commu24 nication acquired under this title. 


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1 ‘‘(E) REVISIONS.—The Attorney General, 

2 in consultation with the Director of National 

3 Intelligence, may submit new or amended proce4 dures to the Foreign Intelligence Surveillance 

5 Court for review under this paragraph. 

6 ‘‘(F) RELIABILITY.—If the Government 

7 obtains new information relating to the reli8 ability of procedures approved under this para9 graph or the availability of more reliable proce10 dures, the Attorney General shall submit to the 

11 Foreign Intelligence Surveillance Court the in12 formation. 

13 ‘‘(c) TITLE I COURT ORDER.—If the Government ob14 tains a court order under title I relating to a target of 

15 an acquisition under this title, the Government may access 

16 and disseminate, under the terms of that court order and 

17 any applicable minimization requirements, any commu18 nications of that target that have been acquired and seg19 regated or specifically designated under subsection (b)(1). 

20 ‘‘(d) INSPECTOR GENERAL AUDIT.— 

21 ‘‘(1) AUDIT.—Not less than once each year, the 

22 Inspector General of the Department of Defense and 

23 the Inspector General of the Department of Justice 

24 shall complete an audit of the implementation of and 

25 compliance with this section. For purposes of an 


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1 audit under this paragraph, the Inspectors General 

2 shall have access to any communications that have 

3 been segregated or specifically designated under sub4 section (b)(1) and any information the use of which 

5 has been limited under subsection (b)(5). An audit 

6 under this paragraph shall include an accounting of 

7 any segregated or specifically designated commu8 nications that have been disseminated. 

9 ‘‘(2) REPORT.—Not later than 30 days after 

10 the completion of each audit under paragraph (1), 

11 the Inspectors General shall jointly submit to the 

12 Permanent Select Committee on Intelligence and the 

13 Committee on the Judiciary of the House of Rep14 resentatives and the Select Committee on Intel15 ligence and the Committee on the Judiciary of the 

16 Senate a report containing the results of the audit. 

17 ‘‘(3) EXPEDITED SECURITY CLEARANCE.—The 

18 Director of National Intelligence shall ensure that 

19 the process for the investigation and adjudication of 

20 an application by an Inspector General or any ap21 propriate staff of an Inspector General for a security 

22 clearance necessary for the conduct of the audits 

23 under this subsection is conducted as expeditiously 

24 as possible. 


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1 ‘‘(e) APPLICABILITY.—Subsections (a) and (b) shall 

2 apply to any communication acquired under this title on 

3 or after the earlier of— 

4 ‘‘(1) the date that the Foreign Intelligence Sur5 veillance Court approves the procedures described in 

6 subsection (a)(3) and the procedures described in 

7 subsection (b)(7); and 

8 ‘‘(2) 1 year after the date of enactment of the 

9 JUSTICE Act.’’. 

10 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

11 The table of contents in the first section of the Foreign 

12 Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 

13 seq.) is amended by inserting after the item relating to 

14 section 708 the following: 

‘‘Sec. 709. Additional safeguards for communications of persons in the United 

States.’’. 

15 SEC. 308. CLARIFICATION OF COMPUTER TRESPASS AU16 THORITY. 

17 (a) DEFINITIONS.—Section 2510(21)(B) of title 18, 

18 United States Code, is amended— 

19 (1) by inserting ‘‘or other’’ after ‘‘contractual’’; 

20 and 

21 (2) by striking ‘‘for access’’ and inserting ‘‘per22 mitting access’’. 

23 (b) INTERCEPTION AND DISCLOSURE.—Section 

24 2511(2)(i) of title 18, United States Code, is amended— 


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1 (1) in subclause (I), by striking ‘‘protected com2 puter authorizes’’ and inserting the following: ‘‘pro3 tected computer— 

4 ‘‘(aa) is attempting to respond to 

5 communications activity that threat6 ens the integrity or operation of the 

7 protected computer and requests as8 sistance to protect the rights and 

9 property of the owner or operator; 

10 and 

11 ‘‘(bb) authorizes’’; and 

12 (2) in clause (IV), by striking ‘‘interception 

13 does not’’ and inserting the following: ‘‘intercep14 tion— 

15 ‘‘(aa) ceases as soon as the com16 munications sought are obtained or 

17 after 96 hours, whichever is earlier 

18 (unless an order authorizing or ap19 proving the interception is obtained 

20 under this chapter); and 

21 ‘‘(bb) does not’’. 

22 (c) REPORT.—Not later than 60 days after the date 

23 of enactment of this Act, and annually thereafter, the At24 torney General shall submit a report to the Committee on 

25 the Judiciary of the Senate and the Committee on the JuVerDate Nov 24 2008 00:05 Sep 18, 2009 Jkt 079200 PO 00000 Frm 00098 Fmt 6652 Sfmt 6201 E:\BILLS\S1686.IS S1686

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1 diciary of the House of Representatives on the use of sec2 tion 2511 of title 18, United States Code, relating to com3 puter trespass provisions, as amended by subsection (b), 

4 during the year before the year of that report. 

5 TITLE IV—IMPROVEMENTS TO 

6 FURTHER CONGRESSIONAL 

7 AND JUDICIAL OVERSIGHT 

8 SEC. 401. PUBLIC REPORTING ON THE FOREIGN INTEL9 LIGENCE SURVEILLANCE ACT. 

10 Section 601 of the Foreign Intelligence Surveillance 

11 Act of 1978 (50 U.S.C. 1871) is amended— 

12 (1) by redesignating subsections (b) through (e) 

13 as subsections (c) through (f), respectively; 

14 (2) by inserting after subsection (a) the fol15 lowing: 

16 ‘‘(b) PUBLIC REPORT.—The Attorney General shall 

17 make publicly available the portion of each report under 

18 subsection (a) relating to paragraphs (1) and (2) of sub19 section (a).’’; and 

20 (3) in subsection (e), as so redesignated, by 

21 striking ‘‘subsection (c)’’ and inserting ‘‘subsection 

22 (d)’’. 


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1 SEC. 402. USE OF FOREIGN INTELLIGENCE SURVEILLANCE 

2 ACT MATERIALS. 

3 (a) ELECTRONIC SURVEILLANCE.—Section 106(f) of 

4 the Foreign Intelligence Surveillance Act of 1978 (50 

5 U.S.C. 1806(f)) is amended by striking the last sentence 

6 and inserting ‘‘In making this determination, unless the 

7 court finds that disclosure would not assist in determining 

8 any legal or factual issue pertinent to the case, the court 

9 may disclose to the aggrieved person, the counsel for the 

10 aggrieved person, or both, under the procedures and 

11 standards provided in the Classified Information Proce12 dures Act (18 U.S.C. App.) or other appropriate security 

13 procedures and protective orders, portions of the applica14 tion, order, or other related materials, or evidence or infor15 mation obtained or derived from the order.’’. 

16 (b) PHYSICAL SEARCHES.—Section 305(g) of the 

17 Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 

18 1825(g)) is amended by striking the last sentence and in19 serting ‘‘In making this determination, unless the court 

20 finds that disclosure would not assist in determining any 

21 legal or factual issue pertinent to the case, the court may 

22 disclose to the aggrieved person, the counsel for the ag23 grieved person, or both, under the procedures and stand24 ards provided in the Classified Information Procedures 

25 Act (18 U.S.C. App.) or other appropriate security proce26 dures and protective orders, portions of the application, 


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1 order, or other related materials, or evidence or informa2 tion obtained or derived from the order.’’. 

3 (c) PEN REGISTERS AND TRAP AND TRACE DE4 VICES.—Section 405(f) of the Foreign Intelligence Sur5 veillance Act of 1978 (50 U.S.C. 1845(f)) is amended by 

6 striking paragraph (2) and inserting the following: 

7 ‘‘(2) In making a determination under paragraph (1), 

8 unless the court finds that disclosure would not assist in 

9 determining any legal or factual issue pertinent to the 

10 case, the court may disclose to the aggrieved person, the 

11 counsel for the aggrieved person, or both, under the proce12 dures and standards provided in the Classified Informa13 tion Procedures Act (18 U.S.C. App.) or other appropriate 

14 security procedures and protective orders, portions of the 

15 application, order, or other related materials, or evidence 

16 or information obtained or derived from the order.’’. 

17 SEC. 403. CHALLENGES TO NATIONWIDE ORDERS FOR 

18 ELECTRONIC EVIDENCE. 

19 Section 2703 of title 18, United States Code, is 

20 amended by adding at the end the following: 

21 ‘‘(h) JUDICIAL REVIEW.—A provider of electronic 

22 communication service or remote computing service may 

23 challenge a subpoena, order, or warrant requiring disclo24 sure of customer communications or records under this 

25 section in— 


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1 ‘‘(1) the United States district court for the 

2 district in which the order was issued; or 

3 ‘‘(2) the United States district court for the 

4 district in which the order was served.’’. 

5 TITLE V—IMPROVEMENTS TO 

6 FURTHER EFFECTIVE, FO7 CUSED INVESTIGATIONS 

8 SEC. 501. MODIFICATION OF DEFINITION OF DOMESTIC 

9 TERRORISM. 

10 Section 2331(5) of title 18, United States Code, is 

11 amended— 

12 (1) by striking subparagraphs (A) and (B) and 

13 inserting the following: 

14 ‘‘(A) involve acts dangerous to human life 

15 that constitute a Federal crime of terrorism (as 

16 that term is defined in section 2332b(g)(5)); 

17 and’’; and 

18 (2) by redesignating subparagraph (C) as sub19 paragraph (B). 

20 SEC. 502. CLARIFICATION OF INTENT REQUIREMENT. 

21 Section 2339B(a)(1) of title 18, United States Code, 

22 is amended by inserting ‘‘knowing or intending that the 

23 material support or resources will be used in carrying out 

24 terrorist activity (as defined in section 212(a)(3)(B)(iii) 


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1 of the Immigration and Nationality Act (8 U.S.C. 

2 1182(a)(3)(B)(iii)),’’ before ‘‘shall be fined’’. 

Æ 


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