IB 

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 


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[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. 


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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; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘USA PATRIOT Amendments Act of 2009’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 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. 


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1 TITLE I—USA PATRIOT ACT 

2 RELATED AMENDMENTS 

3 SEC. 101. ROVING WIRETAPS. 

4 Section 105(c)(2)(B) of the Foreign Intelligence Sur5 veillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended 

6 by striking ‘‘finds, based upon specific facts’’ and inserting 

7 ‘‘finds— 

8 ‘‘(i) that the target of the application 

9 is a foreign power, as defined in paragraph 

10 (1), (2), (3), or (6) of section 101(a), an 

11 agent of such a foreign power, or a specific 

12 individual; and 

13 ‘‘(ii) based upon specific facts’’. 

14 SEC. 102. EXTENSION OF SUNSET OF SECTIONS 206 AND 215 

15 OF USA PATRIOT ACT. 

16 Section 102(b)(1) of the USA PATRIOT Improvement 

17 and Reauthorization Act of 2005 (18 U.S.C. 2510 note) is 

18 amended by striking ‘‘December 31, 2009’’ and inserting 

19 ‘‘December 31, 2013’’. 

20 SEC. 103. ACCESS TO CERTAIN TANGIBLE THINGS UNDER 

21 SECTION 501 OF THE FOREIGN INTELLIGENCE 

22 SURVEILLANCE ACT OF 1978. 

23 (a) FACTUAL BASIS FOR AND ISSUANCE OF ORDERS.— 


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1 (1) IN GENERAL.—Section 501 of the Foreign In2 telligence Surveillance Act of 1978 (50 U.S.C. 1861) 

3 is amended— 

4 (A) in the section heading, by striking 

5 ‘‘CERTAIN BUSINESS RECORDS’’ and insert6 ing ‘‘TANGIBLE THINGS’’; and 

7 (B) in subsection (b)(2)(A)— 

8 (i) by striking ‘‘a statement of facts 

9 showing’’ and inserting ‘‘a statement of the 

10 facts and circumstances relied upon by the 

11 applicant to justify the belief of the appli12 cant’’; and 

13 (ii) by striking ‘‘clandestine intel14 ligence activities’’ and all that follows and 

15 inserting ‘‘clandestine intelligence activi16 ties;’’. 

17 (2) TECHNICAL AND CONFORMING AMEND18 MENTS.— 

19 (A) TITLE HEADING.—Title V of the For20 eign Intelligence Surveillance Act of 1978 (50 

21 U.S.C. 1861 et seq.) is amended in the title head22 ing by striking ‘‘CERTAIN BUSINESS 

23 RECORDS’’ and inserting ‘‘TANGIBLE 

24 THINGS’’. 


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1 (B) TABLE OF CONTENTS.—The table of 

2 contents in the first section of the Foreign Intel3 ligence Surveillance Act of 1978 (50 U.S.C. 1801 

4 et seq.) is amended by striking the items relating 

5 to title V and section 501 and inserting the fol6 lowing: 

‘‘TITLE V—ACCESS TO TANGIBLE THINGS FOR FOREIGN 

INTELLIGENCE PURPOSES 

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

7 (b) JUDICIAL REVIEW OF FISA ORDERS.—Section 

8 501 of the Foreign Intelligence Surveillance Act of 1978 (50 

9 U.S.C. 1861) is amended— 

10 (1) in subsection (c)(2)— 

11 (A) in subparagraph (D) by striking 

12 ‘‘things; and’’ and inserting ‘‘things;’’; 

13 (B) in subparagraph (E), by striking ‘‘sub14 section (a).’’ and inserting ‘‘subsection (a); and’’; 

15 and 

16 (C) by adding at the end the following new 

17 subparagraph: 

18 ‘‘(F) shall direct the applicant to provide 

19 notice to each person receiving such order of— 

20 ‘‘(i) the right to challenge the legality 

21 of a production order or nondisclosure order 

22 by filing a petition in accordance with sub23 section (f); and 


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1 ‘‘(ii) the procedures to follow to file 

2 such petition in accordance with such sub3 section.’’; and 

4 (2) in subsection (f)(2)— 

5 (A) in subparagraph (A)— 

6 (i) in clause (i)— 

7 (I) by striking ‘‘a production 

8 order’’ and inserting ‘‘a production 

9 order or nondisclosure order’’; and 

10 (II) by striking ‘‘Not less than 1 

11 year’’ and all that follows; 

12 (ii) in clause (ii), by striking ‘‘produc13 tion order or nondisclosure’’; and 

14 (B) in subparagraph (C)— 

15 (i) by striking clause (ii); and 

16 (ii) by redesignating clause (iii) as 

17 clause (ii). 

18 (c) MINIMIZATION PROCEDURES.—Section 501(g) of 

19 the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 

20 1861(g)) is amended— 

21 (1) by redesignating paragraph (2) as para22 graph (3); and 

23 (2) by inserting after paragraph (1) the fol24 lowing new paragraph: 


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1 ‘‘(2) COMPLIANCE ASSESSMENT.—At or before 

2 the end of the period of time for the production of 

3 tangible things under an order approved under this 

4 section or at any time after the production of tangible 

5 things under such order, a judge may assess compli6 ance with the minimization procedures required to be 

7 followed under such order by reviewing the cir8 cumstances under which information concerning 

9 United States persons was retained or disseminated.’’. 

10 (d) REQUIREMENTS FOR ORDERS FOR CERTAIN

11 RECORDS FROM LIBRARIES.—Section 501 of the Foreign 

12 Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is 

13 amended— 

14 (1) in subsection (b)(2)— 

15 (A) by redesignating subparagraph (B) as 

16 subparagraph (C); and 

17 (B) by inserting after subparagraph (A) the 

18 following new subparagraph: 

19 ‘‘(B) if the records sought contain bookseller 

20 information, or are from a library (as defined in 

21 section 213(1) of the Library Services and Tech22 nology Act (20 U.S.C. 9122(1))) and contain 

23 personally identifiable information about a pa24 tron of such library, a statement of specific and 


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1 articulable facts showing that there are reason2 able grounds to believe that the records sought— 

3 ‘‘(i) are relevant to an authorized in4 vestigation (other than a threat assessment) 

5 conducted in accordance with subsection 

6 (a)(2) to obtain foreign intelligence infor7 mation not concerning a United States per8 son or to protect against international ter9 rorism or clandestine intelligence activities; 

10 and 

11 ‘‘(ii)(I) pertain to a foreign power or 

12 an agent of a foreign power; 

13 ‘‘(II) are relevant to the activities of a 

14 suspected agent of a foreign power who is 

15 the subject of such authorized investigation; 

16 or 

17 ‘‘(III) pertain to an individual in con18 tact with, or known to, a suspected agent of 

19 a foreign power who is the subject of such 

20 authorized investigation; and’’; and 

21 (2) by adding at the end the following new sub22 section: 

23 ‘‘(i) BOOKSELLER INFORMATION DEFINED.—In this 

24 section, the term ‘bookseller information’ means personally 

25 identifiable information concerning the purchase (including 


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1 subscription purchases) or rental of books, journals, or mag2 azines, whether in print or digitally.’’. 

3 SEC. 104. SUNSET RELATING TO INDIVIDUAL TERRORISTS 

4 AS AGENTS OF FOREIGN POWERS. 

5 Section 6001(b) of the Intelligence Reform and Ter6 rorism Prevention Act of 2004 (50 U.S.C. 1801 note; Public 

7 Law 108–458) is amended— 

8 (1) in paragraph (1)— 

9 (A) by striking ‘‘the amendment made by 

10 subsection (a) shall cease to have effect’’ and in11 serting ‘‘effective’’; and 

12 (B) by striking the period and inserting 

13 ‘‘— 

14 ‘‘(A) subparagraph (C) of section 101(b)(1) 

15 of the Foreign Intelligence Surveillance Act of 

16 1978 (50 U.S.C. 1801(b)(1)) is repealed; 

17 ‘‘(B) subparagraphs (D) and (E) of such 

18 section are redesignated as subparagraphs (C) 

19 and (D), respectively; 

20 ‘‘(C) paragraph (2) of section 601(a) of such 

21 Act (50 U.S.C. 1871(a)) is repealed; and 

22 ‘‘(D) paragraphs (3), (4), and (5) of such 

23 section are redesignated as paragraphs (2), (3), 

24 and (4), respectively.’’; and 

25 (2) in paragraph (2)— 


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1 (A) by striking ‘‘EXCEPTION.—With respect 

2 to’’ and inserting ‘‘EXCEPTION.— 

3 ‘‘(A) EXISTING INVESTIGATIONS.—With re4 spect to’’; and 

5 (B) by adding at the end the following new 

6 subparagraph: 

7 ‘‘(B) REPORTS.—Notwithstanding the re8 peals made by paragraph (1), the first report re9 quired under section 601(a) of the Foreign Intel10 ligence Surveillance Act of 1978 (50 U.S.C. 

11 1871(a)) that is submitted after the effective date 

12 of such repeals shall include the number of indi13 viduals covered by an order issued pursuant to 

14 section 101(b)(1)(C) of such Act (as in effect on 

15 the day before such effective date).’’. 

16 SEC. 105. AUDITS. 

17 (a) TANGIBLE THINGS.—Section 106A of the USA PA18 TRIOT Improvement and Reauthorization Act of 2005 

19 (Public Law 109–177; 120 Stat. 200) is amended— 

20 (1) in subsection (b)— 

21 (A) in paragraph (1), by striking ‘‘2006’’ 

22 and inserting ‘‘2013’’; and 

23 (B) in paragraph (5)(C), by striking ‘‘cal24 endar year 2006’’ and inserting ‘‘each of cal25 endar years 2006 through 2013’’; 


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1 (2) in subsection (c), by adding at the end the 

2 following: 

3 ‘‘(3) CALENDAR YEARS 2007 THROUGH 2009.— 

4 Not later than December 31, 2010, the Inspector Gen5 eral of the Department of Justice shall submit to the 

6 Committee on the Judiciary and the Permanent Se7 lect Committee on Intelligence of the House of Rep8 resentatives and the Committee on the Judiciary and 

9 the Select Committee on Intelligence of the Senate a 

10 report containing the results of the audit conducted 

11 under this section for calendar years 2007 through 

12 2009. 

13 ‘‘(4) CALENDAR YEARS 2010 THROUGH 2013.— 

14 Not later than December 31, 2011, and annually 

15 thereafter until December 31, 2014, the Inspector Gen16 eral of the Department of Justice shall submit to the 

17 Committee on the Judiciary and the Permanent Se18 lect Committee on Intelligence of the House of Rep19 resentatives and the Committee on the Judiciary and 

20 the Select Committee on Intelligence of the Senate a 

21 report containing the results of the audit conducted 

22 under this section for the preceding calendar year.’’; 

23 (3) in subsection (d)— 


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1 (A) in paragraph (1), by striking ‘‘or 

2 (c)(2)’’ and inserting ‘‘, (c)(2), (c)(3), or (c)(4)’’; 

3 and 

4 (B) in paragraph (2), by striking ‘‘and 

5 (c)(2)’’ and inserting ‘‘, (c)(2), (c)(3), or (c)(4)’’; 

6 and 

7 (4) in subsection (e), by striking ‘‘and (c)(2)’’ 

8 and inserting ‘‘, (c)(2), (c)(3), or (c)(4)’’. 

9 (b) NATIONAL SECURITY LETTERS.—Section 119 of 

10 the USA PATRIOT Improvement and Reauthorization Act 

11 of 2005 (Public Law 109–177; 120 Stat. 219) is amended— 

12 (1) in subsection (b)(1), by striking ‘‘2006’’ and 

13 inserting ‘‘2013’’; 

14 (2) in subsection (c), by adding at the end the 

15 following: 

16 ‘‘(3) CALENDAR YEARS 2007 THROUGH 2009.— 

17 Not later than December 31, 2010, the Inspector Gen18 eral of the Department of Justice shall submit to the 

19 Committee on the Judiciary and the Permanent Se20 lect Committee on Intelligence of the House of Rep21 resentatives and the Committee on the Judiciary and 

22 the Select Committee on Intelligence of the Senate a 

23 report containing the results of the audit conducted 

24 under this section for calendar years 2007 through 

25 2009. 


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1 ‘‘(4) CALENDAR YEARS 2010 THROUGH 2013.— 

2 Not later than December 31, 2011, and annually 

3 thereafter until December 31, 2014, the Inspector Gen4 eral of the Department of Justice shall submit to the 

5 Committee on the Judiciary and the Permanent Se6 lect Committee on Intelligence of the House of Rep7 resentatives and the Committee on the Judiciary and 

8 the Select Committee on Intelligence of the Senate a 

9 report containing the results of the audit conducted 

10 under this section for the previous calendar year.’’; 

11 (3) in subsection (d)— 

12 (A) in paragraph (1), by striking ‘‘or 

13 (c)(2)’’ and inserting ‘‘, (c)(2), (c)(3), or (c)(4)’’; 

14 and 

15 (B) in paragraph (2), by striking ‘‘or 

16 (c)(2)’’ and inserting ‘‘, (c)(2), (c)(3), or (c)(4)’’; 

17 and 

18 (4) in subsection (e), by striking ‘‘or (c)(2)’’ and 

19 inserting ‘‘, (c)(2), (c)(3), or (c)(4)’’. 

20 (c) PEN REGISTERS AND TRAP AND TRACE DE21 VICES.— 

22 (1) AUDITS.—The Inspector General of the De23 partment of Justice shall perform comprehensive au24 dits of the effectiveness and use by the Federal Gov25 ernment, including any improper or illegal use, of 


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1 pen registers and trap and trace devices under title 

2 IV of the Foreign Intelligence Surveillance Act of 

3 1978 (50 U.S.C. 1841 et seq.) and section 3122 of title 

4 18, United States Code, during the period beginning 

5 on January 1, 2007 and ending on December 31, 

6 2012. 

7 (2) REQUIREMENTS.—The audits required under 

8 paragraph (1) shall include— 

9 (A) an examination of each instance in 

10 which the Attorney General or any other attor11 ney for the Government submitted an applica12 tion for an order or extension of an order under 

13 title IV of the Foreign Intelligence Surveillance 

14 Act of 1978, including whether the court granted, 

15 modified, or denied the application (including 

16 an examination of the basis for any modification 

17 or denial); 

18 (B) an examination of each instance in 

19 which the Attorney General authorized the in20 stallation and use of a pen register or trap and 

21 trace device on an emergency basis under section 

22 403 of the Foreign Intelligence Surveillance Act 

23 of 1978 (50 U.S.C. 1843); 

24 (C) whether the Federal Bureau of Inves25 tigation requested that the Department of Justice 


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1 submit an application for an order or extension 

2 of an order under title IV of the Foreign Intel3 ligence Surveillance Act of 1978 and the request 

4 was not submitted to the court (including an ex5 amination of the basis for not submitting the ap6 plication); 

7 (D) whether bureaucratic or procedural im8 pediments to the use of pen registers and trap 

9 and trace devices under title IV of the Foreign 

10 Intelligence Surveillance Act of 1978 prevent the 

11 Federal Bureau of Investigation from taking full 

12 advantage of the authorities provided under that 

13 title; 

14 (E) any noteworthy facts or circumstances 

15 relating to the use of a pen register or trap and 

16 trace device under title IV of the Foreign Intel17 ligence Surveillance Act of 1978, including any 

18 improper or illegal use of the authority provided 

19 under that title; and 

20 (F) an examination of the effectiveness of 

21 the authority under title IV of the Foreign Intel22 ligence Surveillance Act of 1978 as an investiga23 tive tool, including— 

24 (i) the importance of the information 

25 acquired to the intelligence activities of the 


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1 Federal Bureau of Investigation or any 

2 other department or agency of the Federal 

3 Government; 

4 (ii) the manner in which the informa5 tion is collected, retained, analyzed, and 

6 disseminated by the Federal Bureau of In7 vestigation, including any direct access to 

8 the information provided to any other de9 partment, agency, or instrumentality of 

10 Federal, State, local, or tribal governments 

11 or any private sector entity; 

12 (iii) with respect to calendar years 

13 2010 through 2012, an examination of the 

14 minimization procedures used in relation to 

15 pen registers and trap and trace devices 

16 under title IV of the Foreign Intelligence 

17 Surveillance Act of 1978 and whether the 

18 minimization procedures protect the con19 stitutional rights of United States persons; 

20 (iv) whether, and how often, the Fed21 eral Bureau of Investigation used informa22 tion acquired under a pen register or trap 

23 and trace device under title IV of the For24 eign Intelligence Surveillance Act of 1978 to 

25 produce an analytical intelligence product 


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1 for distribution within the Federal Bureau 

2 of Investigation, to the intelligence commu3 nity (as defined in section 3(4) of the Na4 tional Security Act of 1947 (50 U.S.C. 

5 401a(4))), or to other Federal, State, local, 

6 or tribal government departments, agencies, 

7 or instrumentalities; and 

8 (v) whether, and how often, the Federal 

9 Bureau of Investigation provided informa10 tion acquired under a pen register or trap 

11 and trace device under title IV of the For12 eign Intelligence Surveillance Act of 1978 to 

13 law enforcement authorities for use in 

14 criminal proceedings. 

15 (3) SUBMISSION DATES.— 

16 (A) PRIOR YEARS.—Not later than Decem17 ber 31, 2010, the Inspector General of the De18 partment of Justice shall submit to the Com19 mittee on the Judiciary and the Select Com20 mittee on Intelligence of the Senate and the Com21 mittee on the Judiciary and the Permanent Se22 lect Committee on Intelligence of the House of 

23 Representatives a report containing the results of 

24 the audit conducted under this section for cal25 endar years 2007 thorough 2009. 


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1 (B) CALENDAR YEARS 2010 THROUGH

2 2013.—Not later than December 31, 2011, and 

3 annually thereafter until December 31, 2014, the 

4 Inspector General of the Department of Justice 

5 shall submit to the Committee on the Judiciary 

6 and the Select Committee on Intelligence of the 

7 Senate and the Committee on the Judiciary and 

8 the Permanent Select Committee on Intelligence 

9 of the House of Representatives a report con10 taining the results of the audit conducted under 

11 this section for the previous calendar year. 

12 (4) PRIOR NOTICE TO ATTORNEY GENERAL AND

13 DIRECTOR OF NATIONAL INTELLIGENCE; COMMENTS.— 

14 (A) NOTICE.—Not less than 30 days before 

15 the submission of a report under subparagraph 

16 (A) or (B) of paragraph (3), the Inspector Gen17 eral of the Department of Justice shall provide 

18 the report to the Attorney General and the Direc19 tor of National Intelligence. 

20 (B) COMMENTS.—The Attorney General or 

21 the Director of National Intelligence may pro22 vide such comments to be included in a report 

23 submitted under subparagraph (A) or (B) of 

24 paragraph (3) as the Attorney General or the 


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1 Director of National Intelligence may consider 

2 necessary. 

3 (5) UNCLASSIFIED FORM.—A report submitted 

4 under subparagraph (A) or (B) of paragraph (3) and 

5 any comments included under paragraph (4)(B) shall 

6 be in unclassified form, but may include a classified 

7 annex. 

8 SEC. 106. CRIMINAL ‘‘SNEAK AND PEEK’’ SEARCHES. 

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

10 amended— 

11 (1) in subsection (b)— 

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

13 have an adverse result (as defined in section 

14 2705, except if the adverse results consist only of 

15 unduly delaying a trial)’’ and inserting ‘‘may 

16 endanger the life or physical safety of an indi17 vidual, result in flight from prosecution, result 

18 in the destruction of or tampering with the evi19 dence sought under the warrant, or result in in20 timidation of potential witnesses, or is likely to 

21 otherwise seriously jeopardize an investigation or 

22 unduly delay a trial’’; and 

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

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

25 after the date of its execution.’’; and 


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

2 shown’’ and all that follows and inserting ‘‘upon ap3 plication of the United States Attorney for the district 

4 seeking the delay, for additional periods of not more 

5 than 21 days for each application, if the court finds, 

6 for each application, reasonable cause to believe that 

7 notice of the execution of the warrant may endanger 

8 the life or physical safety of an individual, result in 

9 flight from prosecution, result in the destruction of or 

10 tampering with the evidence sought under the war11 rant, or result in intimidation of potential witnesses, 

12 or is likely to otherwise seriously jeopardize an inves13 tigation or unduly delay a trial.’’. 

14 SEC. 107. ORDERS FOR PEN REGISTERS AND TRAP AND 

15 TRACE DEVICES FOR FOREIGN INTEL16 LIGENCE PURPOSES. 

17 (a) APPLICATION.—Section 402(c) of the Foreign In18 telligence Surveillance Act of 1978 (50 U.S.C. 1842(c)) is 

19 amended— 

20 (1) in paragraph (1), by striking ‘‘and’’ at the 

21 end; 

22 (2) in paragraph (2)— 

23 (A) by striking ‘‘a certification by the ap24 plicant’’ and inserting ‘‘a statement of the facts 


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1 relied upon by the applicant to justify the belief 

2 of the applicant’’; and 

3 (B) by striking the period at the end and 

4 inserting ‘‘; and’’; and 

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

6 ‘‘(3) a statement of proposed minimization pro7 cedures.’’. 

8 (b) MINIMIZATION.— 

9 (1) DEFINITION.—Section 401 of the Foreign In10 telligence Surveillance Act of 1978 (50 U.S.C. 1841) 

11 is amended by adding at the end 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 of 

17 a pen register or trap and trace device, to mini18 mize the retention, and prohibit the dissemina19 tion, of nonpublicly available information known 

20 to concern unconsenting United States persons 

21 consistent with the need of the United States to 

22 obtain, produce, and disseminate foreign intel23 ligence information; 

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


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1 intelligence information shall not be dissemi2 nated in a manner that identifies any United 

3 States person, without such person’s consent, un4 less such person’s identity is necessary to under5 stand foreign intelligence information or assess 

6 its importance; and 

7 ‘‘(C) notwithstanding subparagraphs (A) 

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

9 and dissemination of information that is evi10 dence of a crime which has been, is being, or is 

11 about to be committed and that is to be retained 

12 or disseminated for law enforcement purposes.’’. 

13 (2) PEN REGISTERS AND TRAP AND TRACE DE14 VICES.—Section 402 of the Foreign Intelligence Sur15 veillance Act of 1978 (50 U.S.C. 1842) is amended— 

16 (A) in subsection (d)(2)— 

17 (i) in subparagraph (C)(i)(VII), by 

18 striking ‘‘; and’’ and inserting ‘‘;’’; 

19 (ii) in subparagraph (C)(ii)(IV), by 

20 striking the period at the end and inserting 

21 ‘‘; and’’; and 

22 (iii) by adding at the end the following 

23 new subparagraph: 


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1 ‘‘(D) shall, if the judge finds that there are 

2 exceptional circumstances, direct that minimiza3 tion procedures be followed.’’; and 

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

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

6 the installation and use of a pen register or trap and trace 

7 device is approved under an order or an extension under 

8 this section, the judge may assess compliance with any ap9 plicable minimization procedures by reviewing the cir10 cumstances under which information concerning United 

11 States persons was retained or disseminated.’’. 

12 (3) EMERGENCIES.—Section 403 of the Foreign 

13 Intelligence Surveillance Act of 1978 (50 U.S.C. 

14 1843) is amended— 

15 (A) by redesignating subsection (c) as sub16 section (d); and 

17 (B) by inserting after subsection (b) the fol18 lowing: 

19 ‘‘(c) If the Attorney General authorizes the emergency 

20 installation and use of a pen register or trap and trace 

21 device under this section, the Attorney General shall require 

22 that minimization procedures be followed, if appropriate.’’. 

23 (4) USE OF INFORMATION.—Section 405(a)(1) of 

24 the Foreign Intelligence Surveillance Act of 1978 (50 

25 U.S.C. 1845(a)(1)) is amended by inserting ‘‘and the 


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1 minimization procedures under this title, if required’’ 

2 after ‘‘provisions of this section’’. 

3 SEC. 108. PUBLIC REPORTING ON THE FOREIGN INTEL4 LIGENCE SURVEILLANCE ACT OF 1978. 

5 Section 601 of the Foreign Intelligence Surveillance 

6 Act of 1978 (50 U.S.C. 1871) is amended— 

7 (1) by redesignating subsections (b) through (e) 

8 as subsections (c) through (f), respectively; 

9 (2) by inserting after subsection (a) the fol10 lowing: 

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

12 make publicly available the portion of each report under 

13 subsection (a) relating to paragraph (1) of such sub14 section.’’; and 

15 (3) in subsection (e), as so redesignated, by strik16 ing ‘‘subsection (c)’’ and inserting ‘‘subsection (d)’’. 

17 SEC. 109. CHALLENGES TO NATIONWIDE ORDERS FOR 

18 ELECTRONIC EVIDENCE. 

19 Section 2703 of title 18, United States Code, is amend20 ed by adding at the end the following: 

21 ‘‘(h) JUDICIAL REVIEW.—A provider of electronic com22 munication service or remote computing service may chal23 lenge a subpoena, order, or warrant requiring disclosure of 

24 customer communications or records under this section 

25 in— 


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1 ‘‘(1) the United States district court for the dis2 trict in which the order was issued; or 

3 ‘‘(2) the United States district court for the dis4 trict in which the order was served.’’. 

5 SEC. 110. REPORT ON CIVIL LIBERTIES AND PRIVACY PRO6 TECTIONS. 

7 Not later than 180 days after the date of the enactment 

8 of this Act, the President shall submit to the Committee on 

9 the Judiciary and the Permanent Select Committee on In10 telligence of the House of Representatives and the Com11 mittee on the Judiciary and the Select Committee on Intel12 ligence of the Senate a report describing— 

13 (1) whether operations conducted pursuant to or14 ders issued under section 501 of the Foreign Intel15 ligence Surveillance Act of 1978 (50 U.S.C. 1861) 

16 could be modified in a manner that enhances protec17 tions for civil liberties; and 

18 (2) the nature of any potential modifications, the 

19 likely costs of such modifications, any technical chal20 lenges, and any potential impact on such operations. 

21 TITLE II—NATIONAL SECURITY 

22 LETTER REFORM 

23 SEC. 201. SHORT TITLE. 

24 This title may be referred to as the ‘‘National Security 

25 Letter Reform Act of 2009’’. 


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1 SEC. 202. SUNSET. 

2 (a) IN GENERAL.—Effective on December 31, 2013, the 

3 following provisions of law are amended to read as such 

4 provisions read on October 25, 2001: 

5 (1) Section 2709 of title 18, United States Code. 

6 (2) Section 1114(a)(5) of the Right to Financial 

7 Privacy Act of 1978 (12 U.S.C. 3414(a)(5)). 

8 (3) Subsections (a) and (b) of section 626 of the 

9 Fair Credit Reporting Act (15 U.S.C. 1681u). 

10 (4) Section 627 of the Fair Credit Reporting Act 

11 (15 U.S.C. 1681v). 

12 (5) Section 802 of the National Security Act of 

13 1947 (50 U.S.C. 436). 

14 (b) TRANSITION PROVISION.—Notwithstanding sub15 section (a), the provisions of law referred to in subsection 

16 (a), as in effect on December 30, 2013, shall continue to 

17 apply after December 31, 2013, with respect to any par18 ticular foreign intelligence investigation or with respect to 

19 any particular offense or potential offense that began or oc20 curred before December 31, 2013. 

21 SEC. 203. NATIONAL SECURITY LETTER DEFINED. 

22 In this title, the term ‘‘national security letter’’ means 

23 a request for information under one of the following provi24 sions of law: 


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1 (1) Section 2709(a) of title 18, United States 

2 Code (to access certain communication service pro3 vider records). 

4 (2) Section 1114(a)(5)(A) of the Right to Finan5 cial Privacy Act (12 U.S.C. 3414(a)(5)(A)) (to obtain 

6 financial institution customer records). 

7 (3) Section 626 of the Fair Credit Reporting Act 

8 (15 U.S.C. 1681u) (to obtain certain financial infor9 mation and consumer reports). 

10 (4) Section 627 of the Fair Credit Reporting Act 

11 (15 U.S.C. 1681v) (to obtain credit agency consumer 

12 records for counterterrorism investigations). 

13 (5) Section 802 of the National Security Act of 

14 1947 (50 U.S.C. 436). 

15 SEC. 204. MODIFICATION OF STANDARD. 

16 (a) IN GENERAL.—A national security letter may not 

17 be issued unless the official having authority under law to 

18 issue that letter documents in a separate writing specific 

19 and articulable facts showing that there are reasonable 

20 grounds to believe that the information sought— 

21 (1) pertains to a foreign power or an agent of 

22 a foreign power; 

23 (2) is relevant to the activities of a suspected 

24 agent of a foreign power that is the subject of such au25 thorized investigation; or 


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1 (3) pertains to an individual in contact with, or 

2 personally known to, a suspected agent of a foreign 

3 power that is the subject of such authorized investiga4 tion. 

5 (b) MAINTENANCE.—The agency under whose author6 ity a national security letter is issued shall maintain a 

7 copy of a separate writing required under subsection (a). 

8 (c) DEFINITIONS.—In this section, the terms ‘‘foreign 

9 power’’ and ‘‘agent of a foreign power’’ have the meaning 

10 given such terms in section 101 of the Foreign Intelligence 

11 Surveillance Act of 1978 (50 U.S.C. 1801). 

12 SEC. 205. NOTIFICATION OF RIGHT TO JUDICIAL REVIEW OF 

13 NONDISCLOSURE ORDER. 

14 If a recipient of a national security letter is subject 

15 to a nondisclosure requirement imposed in connection with 

16 that national security letter, the official issuing that letter 

17 shall, simultaneously with its issuance, inform the recipient 

18 of the right of the recipient to judicial review of that re19 quirement and that the requirement will remain in effect 

20 during the pendency of any judicial review proceedings. 

21 SEC. 206. DISCLOSURE FOR LAW ENFORCEMENT PURPOSES. 

22 No information acquired by a national security letter 

23 shall be disclosed for law enforcement purposes unless such 

24 disclosure is accompanied by a statement that such infor25 mation may only be used in a criminal proceeding with 


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1 the advance authorization of the Attorney General, or a des2 ignee of the Attorney General at a level not lower than Sec3 tion Chief of a division of the Department of Justice. 

4 SEC. 207. JUDICIAL REVIEW OF NATIONAL SECURITY LET5 TER NONDISCLOSURE ORDER. 

6 Section 3511(b) of title 18, United States Code, is 

7 amended to read as follows: 

8 ‘‘(b) NONDISCLOSURE.— 

9 ‘‘(1) IN GENERAL.— 

10 ‘‘(A) NOTICE.—If a recipient of a request or 

11 order for a report, records, or other information 

12 under section 2709 of this title, section 626 or 

13 627 of the Fair Credit Reporting Act (15 U.S.C. 

14 1681u and 1681v), section 1114 of the Right to 

15 Financial Privacy Act (12 U.S.C. 3414), or sec16 tion 802 of the National Security Act of 1947 

17 (50 U.S.C. 436), wishes to have a court review 

18 a nondisclosure requirement imposed in connec19 tion with the request, the recipient shall notify 

20 the Government. 

21 ‘‘(B) APPLICATION.—Not later than 30 days 

22 after the date of receipt of a notification under 

23 subparagraph (A), the Government shall apply 

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1 tents of the relevant request or order. An appli2 cation under this subparagraph may be filed in 

3 the district court of the United States for any 

4 district within which the authorized investiga5 tion that is the basis for the request or order is 

6 being conducted. The applicable nondisclosure re7 quirement shall remain in effect during the 

8 pendency of proceedings relating to the require9 ment. 

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

11 the United States that receives an application 

12 under subparagraph (B) should rule expedi13 tiously, and may issue a nondisclosure order for 

14 a period of not longer than 180 days. 

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

16 United States rejects an application for a non17 disclosure order or extension thereof, the non18 disclosure requirement shall no longer be in ef19 fect. 

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

21 for a nondisclosure order or extension thereof under 

22 this subsection shall include a certification from the 

23 Attorney General, Deputy Attorney General, an As24 sistant Attorney General, or the Director of the Fed25 eral Bureau of Investigation, or in the case of a reVerDate Nov 24 2008 20:46 Jan 29, 2010 Jkt 089200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6203 E:\BILLS\H3845.RH H3845

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1 quest by a department, agency, or instrumentality of 

2 the Federal Government other than the Department of 

3 Justice, the head or deputy head of the department, 

4 agency, or instrumentality, of the existence of a result 

5 described in subparagraphs (A) through (D) and a 

6 statement of specific and articulable facts indicating 

7 that, absent a prohibition of disclosure under this 

8 subsection, there may result— 

9 ‘‘(A) a danger to the national security of 

10 the United States; 

11 ‘‘(B) interference with a criminal, counter12 terrorism, or counterintelligence investigation; 

13 ‘‘(C) interference with diplomatic relations; 

14 or 

15 ‘‘(D) danger to the life or physical safety of 

16 any person. 

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

18 States may issue a nondisclosure requirement order 

19 or extension thereof under this subsection if the court 

20 determines that there is reason to believe that disclo21 sure of the information subject to the nondisclosure re22 quirement during the applicable time period will have 

23 a result described in paragraph (2). 

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

25 this subsection may be renewed for additional periods 


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1 of not longer than 180 days each, upon a determina2 tion by the court that a result described in paragraph 

3 (2) justifies the renewal. 

4 ‘‘(5) EARLY TERMINATION OF NONDISCLOSURE

5 ORDER.—A nondisclosure order the Government ap6 plied for under paragraph (1)(B) ceases to have effect 

7 when the Government discovers that the factual basis 

8 for that order has ceased to exist and the Government 

9 so informs the order’s recipient. The Government 

10 upon making such a discovery shall promptly so in11 forms the recipient.’’. 

12 SEC. 208. MINIMIZATION. 

13 (a) IN GENERAL.—Not later than 180 days after the 

14 date of enactment of this Act, the Attorney General shall— 

15 (1) establish minimization procedures governing 

16 the acquisition, retention, and dissemination by the 

17 Federal Bureau of Investigation of any records re18 ceived by the Federal Bureau of Investigation in re19 sponse to a national security letter; and 

20 (2) submit to the Committee on the Judiciary 

21 and the Select Committee on Intelligence of the Senate 

22 and the Committee on the Judiciary and the Perma23 nent Select Committee on Intelligence of the House of 

24 Representatives a copy of the minimization proce25 dures established under paragraph (1). 


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1 (b) DEFINITIONS.—In this section— 

2 (1) the term ‘‘minimization procedures’’ 

3 means— 

4 (A) specific procedures that are reasonably 

5 designed in light of the purpose and technique of 

6 a national security letter, to minimize the acqui7 sition and retention, and prohibit the dissemina8 tion, of nonpublicly available information con9 cerning unconsenting United States persons (as 

10 defined in section 101 of the Foreign Intelligence 

11 Surveillance Act of 1978 (50 U.S.C. 1801)) con12 sistent with the need of the United States to ob13 tain, produce, and disseminate foreign intel14 ligence information; 

15 (B) procedures that require that nonpub16 licly available information, which is not foreign 

17 intelligence information (as defined in section 

18 101(e)(1) of the Foreign Intelligence Surveillance 

19 Act of 1978 (50 U.S.C. 1801(e)(1))) shall not be 

20 disseminated in a manner that identifies any 

21 United States person, without the consent of the 

22 United States person, unless the identity of the 

23 United States person is necessary to understand 

24 foreign intelligence information or assess its im25 portance; and 


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1 (C) notwithstanding subparagraphs (A) and 

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

3 dissemination of information that is evidence of 

4 a crime which has been, is being, or is about to 

5 be committed and that is to be retained or dis6 seminated for law enforcement purposes; and 

7 (2) the term ‘‘national security letter’’ means a 

8 request for information issued under section 2709 of 

9 title 18, United States Code, section 1114(a)(5) of the 

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

11 3414(5)), subsection (a) or (b) of section 626 of the 

12 Fair Credit Reporting Act (15 U.S.C. 1681u), or sec13 tion 627 of the Fair Credit Reporting Act (15 U.S.C. 

14 1681v). 

15 SEC. 209. PUBLIC REPORTING ON NATIONAL SECURITY LET16 TERS. 

17 Section 118(c) of the USA PATRIOT Improvement 

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

19 amended— 

20 (1) in paragraph (1)— 

21 (A) in the matter preceding subparagraph 

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

23 States persons’’; and 


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1 (B) in subparagraph (A), by striking ‘‘, ex2 cluding the number of requests for subscriber in3 formation’’; 

4 (2) by redesignating paragraph (2) as para5 graph (3); and 

6 (3) by inserting after paragraph (1) the fol7 lowing: 

8 ‘‘(2) CONTENT.— 

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

10 subparagraph (B), each report required under 

11 this subsection shall include the total number of 

12 requests described in paragraph (1) requiring 

13 disclosure of information concerning— 

14 ‘‘(i) United States persons; 

15 ‘‘(ii) persons who are not United 

16 States persons; 

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

18 authorized national security investigations; 

19 or 

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

21 of authorized national security investiga22 tions. 

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

24 number of requests for subscriber information 

25 under section 2709 of title 18, United States 


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1 Code, a report required under this subsection 

2 need not provide information separated into each 

3 of the categories described in subparagraph 

4 (A).’’. 

5 TITLE III—GENERAL 

6 PROVISIONS 

7 SEC. 301. SENSE OF CONGRESS ON LEVEL OF CLASSIFICA8 TION OF CERTAIN PROGRAMS. 

9 It is the sense of Congress that the President should 

10 periodically review the level of classification of programs 

11 that make use of national security letters (as defined in sec12 tion 203 of this Act) or the authorities under the Foreign 

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

14 seq.) to determine if such programs can be declassified, in 

15 whole or in part, without interfering with an ongoing inves16 tigation or otherwise threatening national security. 


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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 

purposes. terrorism and protect civil liberties, and for other 

JANUARY 29, 2010 

The Permanent Select Committee on Intelligence and the 

State of the Union and ordered to be printed mitted to the Committee of the Whole House on the Committee on Financial Services discharged; comVerDate Nov 24 2008 21:04 Jan 29, 2010 Jkt 089200 PO 00000 Frm 00038 Fmt 6651 Sfmt 6651 E:\BILLS\H3845.RH H3845

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