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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3845 Reported in House (RH)]

                                                 Union Calendar No. 240
111th CONGRESS
   2d Session
                                H. R. 3845

                      [Report No. 111-383, Part I]

To extend and modify authorities needed to combat terrorism and protect 
                civil liberties, and for other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                            October 20, 2009

    Mr. Conyers (for himself, Mr. Nadler of New York, Mr. Scott of 
  Virginia, Mr. Cohen, Ms. Harman, Ms. Jackson-Lee of Texas, and Mr. 
 Johnson of Georgia) introduced the following bill; which was referred 
  to the Committee on the Judiciary, and in addition to the Permanent 
 Select Committee on Intelligence and Committee on Financial Services, 
for a period to be subsequently determined by the Speaker, in each case 
for consideration of such provisions as fall within the jurisdiction of 
                        the committee concerned

                           December 16, 2009

     Reported from the Committee on the Judiciary with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

                           December 16, 2009

  Referral to the Permanent Select Committee on Intelligence and the 
Committee on Financial Services extended for a period ending not later 
                         than January 29, 2010

                            January 29, 2010

  Additional sponsors: Ms. Schakowsky, Mr. Holt, Mr. Michaud, and Ms. 
                            Pingree of Maine

                            January 29, 2010

  The Permanent Select Committee on Intelligence and the Committee on 
Financial Services discharged; committed to the Committee of the Whole 
       House on the State of the Union and ordered to be printed
[For text of introduced bill, see copy of bill as introduced on October 
                               20, 2009]

_______________________________________________________________________

                                 A BILL

 
To extend and modify authorities needed to combat terrorism and protect 
                civil liberties, and for other purposes.

 

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

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

Sec. 1. Short title; table of contents.

              TITLE I--USA PATRIOT ACT RELATED AMENDMENTS

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

               TITLE II--NATIONAL SECURITY LETTER REFORM

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

                     TITLE III--GENERAL PROVISIONS

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

              TITLE I--USA PATRIOT ACT RELATED AMENDMENTS

SEC. 101. ROVING WIRETAPS.

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

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

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

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

    (a) Factual Basis for and Issuance of Orders.--
            (1) In general.--Section 501 of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1861) is amended--
                    (A) in the section heading, by striking ``certain 
                business records'' and inserting ``tangible things''; 
                and
                    (B) in subsection (b)(2)(A)--
                            (i) by striking ``a statement of facts 
                        showing'' and inserting ``a statement of the 
                        facts and circumstances relied upon by the 
                        applicant to justify the belief of the 
                        applicant''; and
                            (ii) by striking ``clandestine intelligence 
                        activities'' and all that follows and inserting 
                        ``clandestine intelligence activities;''.
            (2) Technical and conforming amendments.--
                    (A) Title heading.--Title V of the Foreign 
                Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 
                et seq.) is amended in the title heading by striking 
                ``CERTAIN BUSINESS RECORDS'' and inserting ``TANGIBLE 
                THINGS''.
                    (B) Table of contents.--The table of contents in 
                the first section of the Foreign Intelligence 
                Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is 
                amended by striking the items relating to title V and 
                section 501 and inserting the following:

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

``Sec. 501. Access to tangible things for foreign intelligence and 
                            international terrorism investigations.''.
    (b) Judicial Review of FISA Orders.--Section 501 of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended--
            (1) in subsection (c)(2)--
                    (A) in subparagraph (D) by striking ``things; and'' 
                and inserting ``things;'';
                    (B) in subparagraph (E), by striking ``subsection 
                (a).'' and inserting ``subsection (a); and''; and
                    (C) by adding at the end the following new 
                subparagraph:
                    ``(F) shall direct the applicant to provide notice 
                to each person receiving such order of--
                            ``(i) the right to challenge the legality 
                        of a production order or nondisclosure order by 
                        filing a petition in accordance with subsection 
                        (f); and
                            ``(ii) the procedures to follow to file 
                        such petition in accordance with such 
                        subsection.''; and
            (2) in subsection (f)(2)--
                    (A) in subparagraph (A)--
                            (i) in clause (i)--
                                    (I) by striking ``a production 
                                order'' and inserting ``a production 
                                order or nondisclosure order''; and
                                    (II) by striking ``Not less than 1 
                                year'' and all that follows;
                            (ii) in clause (ii), by striking 
                        ``production order or nondisclosure''; and
                    (B) in subparagraph (C)--
                            (i) by striking clause (ii); and
                            (ii) by redesignating clause (iii) as 
                        clause (ii).
    (c) Minimization Procedures.--Section 501(g) of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(g)) is amended--
            (1) by redesignating paragraph (2) as paragraph (3); and
            (2) by inserting after paragraph (1) the following new 
        paragraph:
            ``(2) Compliance assessment.--At or before the end of the 
        period of time for the production of tangible things under an 
        order approved under this section or at any time after the 
        production of tangible things under such order, a judge may 
        assess compliance with the minimization procedures required to 
        be followed under such order by reviewing the circumstances 
        under which information concerning United States persons was 
        retained or disseminated.''.
    (d) Requirements for Orders for Certain Records From Libraries.--
Section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1861) is amended--
            (1) in subsection (b)(2)--
                    (A) by redesignating subparagraph (B) as 
                subparagraph (C); and
                    (B) by inserting after subparagraph (A) the 
                following new subparagraph:
                    ``(B) if the records sought contain bookseller 
                information, or are from a library (as defined in 
                section 213(1) of the Library Services and Technology 
                Act (20 U.S.C. 9122(1))) and contain personally 
                identifiable information about a patron of such 
                library, a statement of specific and articulable facts 
                showing that there are reasonable grounds to believe 
                that the records sought--
                            ``(i) are relevant to an authorized 
                        investigation (other than a threat assessment) 
                        conducted in accordance with subsection (a)(2) 
                        to obtain foreign intelligence information not 
                        concerning a United States person or to protect 
                        against international terrorism or clandestine 
                        intelligence activities; and
                            ``(ii)(I) pertain to a foreign power or an 
                        agent of a foreign power;
                            ``(II) are relevant to the activities of a 
                        suspected agent of a foreign power who is the 
                        subject of such authorized investigation; or
                            ``(III) pertain to an individual in contact 
                        with, or known to, a suspected agent of a 
                        foreign power who is the subject of such 
                        authorized investigation; and''; and
            (2) by adding at the end the following new subsection:
    ``(i) Bookseller Information Defined.--In this section, the term 
`bookseller information' means personally identifiable information 
concerning the purchase (including subscription purchases) or rental of 
books, journals, or magazines, whether in print or digitally.''.

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

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

SEC. 105. AUDITS.

    (a) Tangible Things.--Section 106A of the USA PATRIOT Improvement 
and Reauthorization Act of 2005 (Public Law 109-177; 120 Stat. 200) is 
amended--
            (1) in subsection (b)--
                    (A) in paragraph (1), by striking ``2006'' and 
                inserting ``2013''; and
                    (B) in paragraph (5)(C), by striking ``calendar 
                year 2006'' and inserting ``each of calendar years 2006 
                through 2013'';
            (2) in subsection (c), by adding at the end the following:
            ``(3) Calendar years 2007 through 2009.--Not later than 
        December 31, 2010, the Inspector General of the Department of 
        Justice shall submit to the Committee on the Judiciary and the 
        Permanent Select Committee on Intelligence of the House of 
        Representatives and the Committee on the Judiciary and the 
        Select Committee on Intelligence of the Senate a report 
        containing the results of the audit conducted under this 
        section for calendar years 2007 through 2009.
            ``(4) Calendar years 2010 through 2013.--Not later than 
        December 31, 2011, and annually thereafter until December 31, 
        2014, the Inspector General of the Department of Justice shall 
        submit to the Committee on the Judiciary and the Permanent 
        Select Committee on Intelligence of the House of 
        Representatives and the Committee on the Judiciary and the 
        Select Committee on Intelligence of the Senate a report 
        containing the results of the audit conducted under this 
        section for the preceding calendar year.'';
            (3) in subsection (d)--
                    (A) in paragraph (1), by striking ``or (c)(2)'' and 
                inserting ``, (c)(2), (c)(3), or (c)(4)''; and
                    (B) in paragraph (2), by striking ``and (c)(2)'' 
                and inserting ``, (c)(2), (c)(3), or (c)(4)''; and
            (4) in subsection (e), by striking ``and (c)(2)'' and 
        inserting ``, (c)(2), (c)(3), or (c)(4)''.
    (b) National Security Letters.--Section 119 of the USA PATRIOT 
Improvement and Reauthorization Act of 2005 (Public Law 109-177; 120 
Stat. 219) is amended--
            (1) in subsection (b)(1), by striking ``2006'' and 
        inserting ``2013'';
            (2) in subsection (c), by adding at the end the following:
            ``(3) Calendar years 2007 through 2009.--Not later than 
        December 31, 2010, the Inspector General of the Department of 
        Justice shall submit to the Committee on the Judiciary and the 
        Permanent Select Committee on Intelligence of the House of 
        Representatives and the Committee on the Judiciary and the 
        Select Committee on Intelligence of the Senate a report 
        containing the results of the audit conducted under this 
        section for calendar years 2007 through 2009.
            ``(4) Calendar years 2010 through 2013.--Not later than 
        December 31, 2011, and annually thereafter until December 31, 
        2014, the Inspector General of the Department of Justice shall 
        submit to the Committee on the Judiciary and the Permanent 
        Select Committee on Intelligence of the House of 
        Representatives and the Committee on the Judiciary and the 
        Select Committee on Intelligence of the Senate a report 
        containing the results of the audit conducted under this 
        section for the previous calendar year.'';
            (3) in subsection (d)--
                    (A) in paragraph (1), by striking ``or (c)(2)'' and 
                inserting ``, (c)(2), (c)(3), or (c)(4)''; and
                    (B) in paragraph (2), by striking ``or (c)(2)'' and 
                inserting ``, (c)(2), (c)(3), or (c)(4)''; and
            (4) in subsection (e), by striking ``or (c)(2)'' and 
        inserting ``, (c)(2), (c)(3), or (c)(4)''.
    (c) Pen Registers and Trap and Trace Devices.--
            (1) Audits.--The Inspector General of the Department of 
        Justice shall perform comprehensive audits of the effectiveness 
        and use by the Federal Government, including any improper or 
        illegal use, of pen registers and trap and trace devices under 
        title IV of the Foreign Intelligence Surveillance Act of 1978 
        (50 U.S.C. 1841 et seq.) and section 3122 of title 18, United 
        States Code, during the period beginning on January 1, 2007 and 
        ending on December 31, 2012.
            (2) Requirements.--The audits required under paragraph (1) 
        shall include--
                    (A) an examination of each instance in which the 
                Attorney General or any other attorney for the 
                Government submitted an application for an order or 
                extension of an order under title IV of the Foreign 
                Intelligence Surveillance Act of 1978, including 
                whether the court granted, modified, or denied the 
                application (including an examination of the basis for 
                any modification or denial);
                    (B) an examination of each instance in which the 
                Attorney General authorized the installation and use of 
                a pen register or trap and trace device on an emergency 
                basis under section 403 of the Foreign Intelligence 
                Surveillance Act of 1978 (50 U.S.C. 1843);
                    (C) whether the Federal Bureau of Investigation 
                requested that the Department of Justice submit an 
                application for an order or extension of an order under 
                title IV of the Foreign Intelligence Surveillance Act 
                of 1978 and the request was not submitted to the court 
                (including an examination of the basis for not 
                submitting the application);
                    (D) whether bureaucratic or procedural impediments 
                to the use of pen registers and trap and trace devices 
                under title IV of the Foreign Intelligence Surveillance 
                Act of 1978 prevent the Federal Bureau of Investigation 
                from taking full advantage of the authorities provided 
                under that title;
                    (E) any noteworthy facts or circumstances relating 
                to the use of a pen register or trap and trace device 
                under title IV of the Foreign Intelligence Surveillance 
                Act of 1978, including any improper or illegal use of 
                the authority provided under that title; and
                    (F) an examination of the effectiveness of the 
                authority under title IV of the Foreign Intelligence 
                Surveillance Act of 1978 as an investigative tool, 
                including--
                            (i) the importance of the information 
                        acquired to the intelligence activities of the 
                        Federal Bureau of Investigation or any other 
                        department or agency of the Federal Government;
                            (ii) the manner in which the information is 
                        collected, retained, analyzed, and disseminated 
                        by the Federal Bureau of Investigation, 
                        including any direct access to the information 
                        provided to any other department, agency, or 
                        instrumentality of Federal, State, local, or 
                        tribal governments or any private sector 
                        entity;
                            (iii) with respect to calendar years 2010 
                        through 2012, an examination of the 
                        minimization procedures used in relation to pen 
                        registers and trap and trace devices under 
                        title IV of the Foreign Intelligence 
                        Surveillance Act of 1978 and whether the 
                        minimization procedures protect the 
                        constitutional rights of United States persons;
                            (iv) whether, and how often, the Federal 
                        Bureau of Investigation used information 
                        acquired under a pen register or trap and trace 
                        device under title IV of the Foreign 
                        Intelligence Surveillance Act of 1978 to 
                        produce an analytical intelligence product for 
                        distribution within the Federal Bureau of 
                        Investigation, to the intelligence community 
                        (as defined in section 3(4) of the National 
                        Security Act of 1947 (50 U.S.C. 401a(4))), or 
                        to other Federal, State, local, or tribal 
                        government departments, agencies, or 
                        instrumentalities; and
                            (v) whether, and how often, the Federal 
                        Bureau of Investigation provided information 
                        acquired under a pen register or trap and trace 
                        device under title IV of the Foreign 
                        Intelligence Surveillance Act of 1978 to law 
                        enforcement authorities for use in criminal 
                        proceedings.
            (3) Submission dates.--
                    (A) Prior years.--Not later than December 31, 2010, 
                the Inspector General of the Department of Justice 
                shall submit to the Committee on the Judiciary and the 
                Select Committee on Intelligence of the Senate and the 
                Committee on the Judiciary and the Permanent Select 
                Committee on Intelligence of the House of 
                Representatives a report containing the results of the 
                audit conducted under this section for calendar years 
                2007 thorough 2009.
                    (B) Calendar years 2010 through 2013.--Not later 
                than December 31, 2011, and annually thereafter until 
                December 31, 2014, the Inspector General of the 
                Department of Justice shall submit to the Committee on 
                the Judiciary and the Select Committee on Intelligence 
                of the Senate and the Committee on the Judiciary and 
                the Permanent Select Committee on Intelligence of the 
                House of Representatives a report containing the 
                results of the audit conducted under this section for 
                the previous calendar year.
            (4) Prior notice to attorney general and director of 
        national intelligence; comments.--
                    (A) Notice.--Not less than 30 days before the 
                submission of a report under subparagraph (A) or (B) of 
                paragraph (3), the Inspector General of the Department 
                of Justice shall provide the report to the Attorney 
                General and the Director of National Intelligence.
                    (B) Comments.--The Attorney General or the Director 
                of National Intelligence may provide such comments to 
                be included in a report submitted under subparagraph 
                (A) or (B) of paragraph (3) as the Attorney General or 
                the Director of National Intelligence may consider 
                necessary.
            (5) Unclassified form.--A report submitted under 
        subparagraph (A) or (B) of paragraph (3) and any comments 
        included under paragraph (4)(B) shall be in unclassified form, 
        but may include a classified annex.

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

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

SEC. 107. ORDERS FOR PEN REGISTERS AND TRAP AND TRACE DEVICES FOR 
              FOREIGN INTELLIGENCE PURPOSES.

    (a) Application.--Section 402(c) of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1842(c)) is amended--
            (1) in paragraph (1), by striking ``and'' at the end;
            (2) in paragraph (2)--
                    (A) by striking ``a certification by the 
                applicant'' and inserting ``a statement of the facts 
                relied upon by the applicant to justify the belief of 
                the applicant''; and
                    (B) by striking the period at the end and inserting 
                ``; and''; and
            (3) by adding at the end the following:
            ``(3) a statement of proposed minimization procedures.''.
    (b) Minimization.--
            (1) Definition.--Section 401 of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1841) is amended by adding 
        at the end the following:
            ``(4) The term `minimization procedures' means--
                    ``(A) specific procedures, that are reasonably 
                designed in light of the purpose and technique of an 
                order for the installation and use of a pen register or 
                trap and trace device, to minimize the retention, and 
                prohibit the dissemination, of nonpublicly available 
                information known to concern unconsenting United States 
                persons consistent with the need of the United States 
                to obtain, produce, and disseminate foreign 
                intelligence information;
                    ``(B) procedures that require that nonpublicly 
                available information, which is not foreign 
                intelligence information shall not be disseminated in a 
                manner that identifies any United States person, 
                without such person's consent, unless such person's 
                identity is necessary to understand foreign 
                intelligence information or assess its importance; and
                    ``(C) notwithstanding subparagraphs (A) and (B), 
                procedures that allow for the retention and 
                dissemination of information that is evidence of a 
                crime which has been, is being, or is about to be 
                committed and that is to be retained or disseminated 
                for law enforcement purposes.''.
            (2) Pen registers and trap and trace devices.--Section 402 
        of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
        1842) is amended--
                    (A) in subsection (d)(2)--
                            (i) in subparagraph (C)(i)(VII), by 
                        striking ``; and'' and inserting ``;'';
                            (ii) in subparagraph (C)(ii)(IV), by 
                        striking the period at the end and inserting 
                        ``; and''; and
                            (iii) by adding at the end the following 
                        new subparagraph:
                    ``(D) shall, if the judge finds that there are 
                exceptional circumstances, direct that minimization 
                procedures be followed.''; and
                    (B) by adding at the end the following:
    ``(h) At or before the end of the period of time for which the 
installation and use of a pen register or trap and trace device is 
approved under an order or an extension under this section, the judge 
may assess compliance with any applicable minimization procedures by 
reviewing the circumstances under which information concerning United 
States persons was retained or disseminated.''.
            (3) Emergencies.--Section 403 of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1843) is amended--
                    (A) by redesignating subsection (c) as subsection 
                (d); and
                    (B) by inserting after subsection (b) the 
                following:
    ``(c) If the Attorney General authorizes the emergency installation 
and use of a pen register or trap and trace device under this section, 
the Attorney General shall require that minimization procedures be 
followed, if appropriate.''.
            (4) Use of information.--Section 405(a)(1) of the Foreign 
        Intelligence Surveillance Act of 1978 (50 U.S.C. 1845(a)(1)) is 
        amended by inserting ``and the minimization procedures under 
        this title, if required'' after ``provisions of this section''.

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

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

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

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

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

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

               TITLE II--NATIONAL SECURITY LETTER REFORM

SEC. 201. SHORT TITLE.

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

SEC. 202. SUNSET.

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

SEC. 203. NATIONAL SECURITY LETTER DEFINED.

    In this title, the term ``national security letter'' means a 
request for information under one of the following provisions of law:
            (1) Section 2709(a) of title 18, United States Code (to 
        access certain communication service provider records).
            (2) Section 1114(a)(5)(A) of the Right to Financial Privacy 
        Act (12 U.S.C. 3414(a)(5)(A)) (to obtain financial institution 
        customer records).
            (3) Section 626 of the Fair Credit Reporting Act (15 U.S.C. 
        1681u) (to obtain certain financial information and consumer 
        reports).
            (4) Section 627 of the Fair Credit Reporting Act (15 U.S.C. 
        1681v) (to obtain credit agency consumer records for 
        counterterrorism investigations).
            (5) Section 802 of the National Security Act of 1947 (50 
        U.S.C. 436).

SEC. 204. MODIFICATION OF STANDARD.

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

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

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

SEC. 206. DISCLOSURE FOR LAW ENFORCEMENT PURPOSES.

    No information acquired by a national security letter shall be 
disclosed for law enforcement purposes unless such disclosure is 
accompanied by a statement that such information may only be used in a 
criminal proceeding with the advance authorization of the Attorney 
General, or a designee of the Attorney General at a level not lower 
than Section Chief of a division of the Department of Justice.

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

    Section 3511(b) of title 18, United States Code, is amended to read 
as follows:
    ``(b) Nondisclosure.--
            ``(1) In general.--
                    ``(A) Notice.--If a recipient of a request or order 
                for a report, records, or other information under 
                section 2709 of this title, section 626 or 627 of the 
                Fair Credit Reporting Act (15 U.S.C. 1681u and 1681v), 
                section 1114 of the Right to Financial Privacy Act (12 
                U.S.C. 3414), or section 802 of the National Security 
                Act of 1947 (50 U.S.C. 436), wishes to have a court 
                review a nondisclosure requirement imposed in 
                connection with the request, the recipient shall notify 
                the Government.
                    ``(B) Application.--Not later than 30 days after 
                the date of receipt of a notification under 
                subparagraph (A), the Government shall apply for an 
                order prohibiting the disclosure of particular 
                information about the existence or contents of the 
                relevant request or order. An application under this 
                subparagraph may be filed in the district court of the 
                United States for any district within which the 
                authorized investigation that is the basis for the 
                request or order is being conducted. The applicable 
                nondisclosure requirement shall remain in effect during 
                the pendency of proceedings relating to the 
                requirement.
                    ``(C) Consideration.--A district court of the 
                United States that receives an application under 
                subparagraph (B) should rule expeditiously, and may 
                issue a nondisclosure order for a period of not longer 
                than 180 days.
                    ``(D) Denial.--If a district court of the United 
                States rejects an application for a nondisclosure order 
                or extension thereof, the nondisclosure requirement 
                shall no longer be in effect.
            ``(2) Application contents.--An application for a 
        nondisclosure order or extension thereof under this subsection 
        shall include a certification from the Attorney General, Deputy 
        Attorney General, an Assistant Attorney General, or the 
        Director of the Federal Bureau of Investigation, or in the case 
        of a request by a department, agency, or instrumentality of the 
        Federal Government other than the Department of Justice, the 
        head or deputy head of the department, agency, or 
        instrumentality, of the existence of a result described in 
        subparagraphs (A) through (D) and a statement of specific and 
        articulable facts indicating that, absent a prohibition of 
        disclosure under this subsection, there may result--
                    ``(A) a danger to the national security of the 
                United States;
                    ``(B) interference with a criminal, 
                counterterrorism, or counterintelligence investigation;
                    ``(C) interference with diplomatic relations; or
                    ``(D) danger to the life or physical safety of any 
                person.
            ``(3) Standard.--A district court of the United States may 
        issue a nondisclosure requirement order or extension thereof 
        under this subsection if the court determines that there is 
        reason to believe that disclosure of the information subject to 
        the nondisclosure requirement during the applicable time period 
        will have a result described in paragraph (2).
            ``(4) Renewal.--A nondisclosure order under this subsection 
        may be renewed for additional periods of not longer than 180 
        days each, upon a determination by the court that a result 
        described in paragraph (2) justifies the renewal.
            ``(5) Early termination of nondisclosure order.--A 
        nondisclosure order the Government applied for under paragraph 
        (1)(B) ceases to have effect when the Government discovers that 
        the factual basis for that order has ceased to exist and the 
        Government so informs the order's recipient. The Government 
        upon making such a discovery shall promptly so informs the 
        recipient.''.

SEC. 208. MINIMIZATION.

    (a) In General.--Not later than 180 days after the date of 
enactment of this Act, the Attorney General shall--
            (1) establish minimization procedures governing the 
        acquisition, retention, and dissemination by the Federal Bureau 
        of Investigation of any records received by the Federal Bureau 
        of Investigation in response to a national security letter; and
            (2) submit to the Committee on the Judiciary and the Select 
        Committee on Intelligence of the Senate and the Committee on 
        the Judiciary and the Permanent Select Committee on 
        Intelligence of the House of Representatives a copy of the 
        minimization procedures established under paragraph (1).
    (b) Definitions.--In this section--
            (1) the term ``minimization procedures'' means--
                    (A) specific procedures that are reasonably 
                designed in light of the purpose and technique of a 
                national security letter, to minimize the acquisition 
                and retention, and prohibit the dissemination, of 
                nonpublicly available information concerning 
                unconsenting United States persons (as defined in 
                section 101 of the Foreign Intelligence Surveillance 
                Act of 1978 (50 U.S.C. 1801)) consistent with the need 
                of the United States to obtain, produce, and 
                disseminate foreign intelligence information;
                    (B) procedures that require that nonpublicly 
                available information, which is not foreign 
                intelligence information (as defined in section 
                101(e)(1) of the Foreign Intelligence Surveillance Act 
                of 1978 (50 U.S.C. 1801(e)(1))) shall not be 
                disseminated in a manner that identifies any United 
                States person, without the consent of the United States 
                person, unless the identity of the United States person 
                is necessary to understand foreign intelligence 
                information or assess its importance; and
                    (C) notwithstanding subparagraphs (A) and (B), 
                procedures that allow for the retention and 
                dissemination of information that is evidence of a 
                crime which has been, is being, or is about to be 
                committed and that is to be retained or disseminated 
                for law enforcement purposes; and
            (2) the term ``national security letter'' means a request 
        for information issued under section 2709 of title 18, United 
        States Code, section 1114(a)(5) of the Right to Financial 
        Privacy Act of 1978 (12 U.S.C. 3414(5)), subsection (a) or (b) 
        of section 626 of the Fair Credit Reporting Act (15 U.S.C. 
        1681u), or section 627 of the Fair Credit Reporting Act (15 
        U.S.C. 1681v).

SEC. 209. PUBLIC REPORTING ON NATIONAL SECURITY LETTERS.

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

                     TITLE III--GENERAL PROVISIONS

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

    It is the sense of Congress that the President should periodically 
review the level of classification of programs that make use of 
national security letters (as defined in section 203 of this Act) or 
the authorities under the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801 et seq.) to determine if such programs can be 
declassified, in whole or in part, without interfering with an ongoing 
investigation or otherwise threatening national security.
                                                 Union Calendar No. 240

111th CONGRESS

   2d Session

                               H. R. 3845

                      [Report No. 111-383, Part I]

_______________________________________________________________________

                                 A BILL

To extend and modify authorities needed to combat terrorism and protect 
                civil liberties, and for other purposes.

_______________________________________________________________________

                            January 29, 2010

  The Permanent Select Committee on Intelligence and the Committee on 
Financial Services discharged; committed to the Committee of the Whole 
       House on the State of the Union and ordered to be printed
```