I 

111TH CONGRESS 

1ST SESSION H. R. 4005 

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

under the USA PATRIOT Act, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 3, 2009 

Mr. HOLT introduced the following bill; which was referred to the Committee 

on the Judiciary, and in addition to the Committees on Financial Services 

and Select Intelligence (Permanent Select), 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 

A BILL 

To place reasonable safeguards on the use of surveillance 

and other authorities under the USA PATRIOT Act, 

and for other purposes. 

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

3 SECTION 1. SHORT TITLE. 

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

6 or ‘‘JUSTICE Act’’. 

7 SEC. 2. TABLE OF CONTENTS. 

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


smartinez on DSKB9S0YB1PROD with BILLS
2 

•HR 4005 IH

Sec. 1. Short title. 

Sec. 2. Table of contents. 

TITLE I—REASONABLE SAFEGUARDS TO PROTECT THE PRIVACY 

OF AMERICANS’ RECORDS 

Sec. 101. National security letter authority. 

Sec. 102. Judicial review of National Security Letters. 

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

Sec. 104. Public reporting on National Security Letters. 

Sec. 105. Emergency disclosures. 

Sec. 106. Least intrusive means. 

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

Sec. 108. Technical and conforming amendments. 

TITLE II—REASONABLE SAFEGUARDS TO PROTECT THE PRIVACY 

OF AMERICANS’ HOMES 

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

TITLE III—REASONABLE SAFEGUARDS TO PROTECT THE 

PRIVACY OF AMERICANS’ COMMUNICATIONS 

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

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

Sec. 303. Repeal of telecommunications immunity. 

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

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

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

Amendments Act. 

Sec. 307. Privacy protections for international communications of Americans 

collected under FISA Amendments Act. 

Sec. 308. Clarification of computer trespass authority. 

TITLE IV—IMPROVEMENTS TO FURTHER CONGRESSIONAL AND 

JUDICIAL OVERSIGHT 

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

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

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

TITLE V—IMPROVEMENTS TO FURTHER EFFECTIVE, FOCUSED 

INVESTIGATIONS 

Sec. 501. Modification of definition of domestic terrorism. 

Sec. 502. Clarification of intent requirement. 


smartinez on DSKB9S0YB1PROD with BILLS
3 

•HR 4005 IH

1 TITLE I—REASONABLE SAFE2 GUARDS TO PROTECT THE 

3 PRIVACY OF AMERICANS’ 

4 RECORDS 

5 SEC. 101. NATIONAL SECURITY LETTER AUTHORITY. 

6 (a) NATIONAL SECURITY LETTER AUTHORITY FOR

7 COMMUNICATIONS SUBSCRIBER RECORDS.— 

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

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

10 ‘‘§ 2709. National Security Letter for communications 

11 subscriber records 

12 ‘‘(a) AUTHORIZATION.— 

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

15 Director whose rank shall be no lower than Deputy 

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

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

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

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

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

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

25 by the provider to a customer or subscriber (inVerDate Nov 24 2008 02:33 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H4005.IH H4005

smartinez on DSKB9S0YB1PROD with BILLS
4 

•HR 4005 IH

1 cluding start date) and the types of service used 

2 by the customer or subscriber; 

3 ‘‘(D) the telephone number or instrument 

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

6 temporarily assigned network address; 

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

8 for service by the provider (including any credit 

9 card or bank account number); 

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

12 service of a customer or subscriber, including 

13 any shipping information and vendor locations; 

14 and 

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

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

18 communications of a customer or subscriber. 

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

20 issued under this subsection may not require the 

21 production of local or long distance telephone 

22 records or electronic communications transactional 

23 information not listed in paragraph (1). 

24 ‘‘(b) REQUIREMENTS.— 


smartinez on DSKB9S0YB1PROD with BILLS
5 

•HR 4005 IH

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

2 shall not be issued under subsection (a) unless— 

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

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

6 ‘‘(B) there are specific and articulable 

7 facts providing reason to believe that the 

8 records pertain to a foreign power or suspected 

9 agent of a foreign power. 

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

11 section, an ongoing and authorized national security 

12 investigation— 

13 ‘‘(A) is an investigation conducted under 

14 guidelines approved by the Attorney General 

15 and in accordance with Executive Order 12333 

16 (or any successor order); 

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

18 a United States person upon the basis of activi19 ties protected by the First Amendment to the 

20 Constitution of the United States; and 

21 ‘‘(C) shall be specifically identified and re22 corded by an official issuing a National Security 

23 Letter under subsection (a). 

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

25 issued under subsection (a) shall— 


smartinez on DSKB9S0YB1PROD with BILLS
6 

•HR 4005 IH

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

2 with sufficient particularity to permit the 

3 records to be fairly identified; 

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

5 shall be provided, which shall allow a reasonable 

6 period of time within which the records can be 

7 assembled and made available; 

8 ‘‘(C) provide clear and conspicuous notice 

9 of the principles and procedures set forth in 

10 this section and section 3511 of this title, in11 cluding notification of any nondisclosure re12 quirement under subsection (c), the right to 

13 contest the National Security Letter or applica14 ble nondisclosure requirements and procedures 

15 for doing so, and a statement laying out the 

16 rights and responsibilities of the recipient; and 

17 ‘‘(D) not contain any requirement that 

18 would be held to be unreasonable if contained 

19 in a subpoena duces tecum issued by a court of 

20 the United States in aid of a grand jury inves21 tigation or require the production of any docu22 mentary evidence that would be privileged from 

23 disclosure if demanded by a subpoena duces 

24 tecum issued by a court of the United States in 

25 aid of a grand jury investigation. 


smartinez on DSKB9S0YB1PROD with BILLS
7 

•HR 4005 IH

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

2 of the Federal Bureau of Investigation shall direct 

3 that a signed copy of each National Security Letter 

4 issued under subsection (a) be retained in the data5 base required to be established under section 103 of 

6 the JUSTICE Act. 

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

8 ‘‘(1) IN GENERAL.— 

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

10 issued under subparagraph (B) and notice of 

11 the right to judicial review under paragraph (4) 

12 is provided, no wire or electronic communica13 tion service provider, or officer, employee, or 

14 agent thereof, who receives a National Security 

15 Letter issued under subsection (a), shall dis16 close to any person the particular information 

17 specified in the certification during the time pe18 riod to which the certification applies, which 

19 may be not longer than 1 year. 

20 ‘‘(B) CERTIFICATION.—The requirements 

21 of subparagraph (A) shall apply if the Director 

22 of the Federal Bureau of Investigation, or a 

23 designee of the Director whose rank shall be no 

24 lower than Deputy Assistant Director at BuVerDate Nov 24 2008 02:33 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H4005.IH H4005

smartinez on DSKB9S0YB1PROD with BILLS
8 

•HR 4005 IH

1 reau headquarters or a Special Agent in Charge 

2 of a Bureau field office, certifies that— 

3 ‘‘(i) there is reason to believe that dis4 closure of particular information about the 

5 existence or contents of a National Secu6 rity Letter issued under subsection (a) 

7 during the applicable time period will re8 sult in— 

9 ‘‘(I) endangering the life or phys10 ical safety of any person; 

11 ‘‘(II) flight from prosecution; 

12 ‘‘(III) destruction of or tam13 pering with evidence; 

14 ‘‘(IV) intimidation of potential 

15 witnesses; 

16 ‘‘(V) interference with diplomatic 

17 relations; or 

18 ‘‘(VI) otherwise seriously endan19 gering the national security of the 

20 United States by alerting a target, an 

21 associate of a target, or the foreign 

22 power of which the target is an agent, 

23 of the interest of the Government in 

24 the target; 


smartinez on DSKB9S0YB1PROD with BILLS
9 

•HR 4005 IH

1 ‘‘(ii) the harm identified under clause 

2 (i) relates to the ongoing and authorized 

3 national security investigation to which the 

4 records sought are relevant; and 

5 ‘‘(iii) the nondisclosure requirement is 

6 narrowly tailored to address the specific 

7 harm identified under clause (i). 

8 ‘‘(2) EXCEPTION.— 

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

10 communication service provider, or officer, em11 ployee, or agent thereof, who receives a Na12 tional Security Letter issued under subsection 

13 (a) may disclose information otherwise subject 

14 to any applicable nondisclosure requirement 

15 to— 

16 ‘‘(i) those persons to whom disclosure 

17 is necessary in order to comply with the 

18 National Security Letter; 

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

20 legal advice or assistance regarding the 

21 National Security Letter; or 

22 ‘‘(iii) other persons as permitted by 

23 the Director of the Federal Bureau of In24 vestigation or the designee of the Director. 


smartinez on DSKB9S0YB1PROD with BILLS
10 

•HR 4005 IH

1 ‘‘(B) NONDISCLOSURE REQUIREMENT.—A 

2 person to whom disclosure is made under sub3 paragraph (A) shall be subject to the nondisclo4 sure requirements applicable to a person to 

5 whom a National Security Letter is issued 

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

7 person to whom the National Security Letter is 

8 issued. 

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

10 to a person described in subparagraph (A) in11 formation otherwise subject to a nondisclosure 

12 requirement shall inform the person of the ap13 plicable nondisclosure requirement. 

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

15 Bureau of Investigation, or a designee of the Direc16 tor whose rank shall be no lower than Deputy As17 sistant Director at Bureau headquarters or a Special 

18 Agent in Charge in a Bureau field office, may ex19 tend a nondisclosure requirement for additional peri20 ods of not longer than 1 year if, at the time of each 

21 extension, a new certification is made under para22 graph (1)(B) and notice is provided to the recipient 

23 of the applicable National Security Letter that the 

24 nondisclosure requirement has been extended and 


smartinez on DSKB9S0YB1PROD with BILLS
11 

•HR 4005 IH

1 the recipient has the right to judicial review of the 

2 nondisclosure requirement. 

3 ‘‘(4) RIGHT TO JUDICIAL REVIEW.— 

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

5 communications service provider who receives a 

6 National Security Letter issued under sub7 section (a) shall have the right to judicial re8 view of any applicable nondisclosure require9 ment and any extension thereof. 

10 ‘‘(B) TIMING.— 

11 ‘‘(i) IN GENERAL.—A National Secu12 rity Letter issued under subsection (a) 

13 shall state that if the recipient wishes to 

14 have a court review a nondisclosure re15 quirement, the recipient shall notify the 

16 Government not later than 21 days after 

17 the date of receipt of the National Security 

18 Letter. 

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

20 applicable nondisclosure requirement has 

21 been extended under paragraph (3) shall 

22 state that if the recipient wishes to have a 

23 court review the nondisclosure require24 ment, the recipient shall notify the GovernVerDate Nov 24 2008 02:33 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H4005.IH H4005

smartinez on DSKB9S0YB1PROD with BILLS
12 

•HR 4005 IH

1 ment not later than 21 days after the date 

2 of receipt of the notice. 

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

4 recipient of a National Security Letter issued 

5 under subsection (a) makes a notification under 

6 subparagraph (B), the Government shall ini7 tiate judicial review under the procedures estab8 lished in section 3511 of this title. 

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

10 nondisclosure requirement cease to exist prior to the 

11 applicable time period of the nondisclosure require12 ment, an appropriate official of the Federal Bureau 

13 of Investigation shall promptly notify the wire or 

14 electronic service provider, or officer, employee, or 

15 agent thereof, subject to the nondisclosure require16 ment that the nondisclosure requirement is no longer 

17 in effect. 

18 ‘‘(d) MINIMIZATION AND DESTRUCTION.— 

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

20 after the date of enactment of the JUSTICE Act, 

21 the Attorney General shall establish minimization 

22 and destruction procedures governing the acquisi23 tion, retention and dissemination by the Federal Bu24 reau of Investigation of any records received by the 

25 Federal Bureau of Investigation in response to a 


smartinez on DSKB9S0YB1PROD with BILLS
13 

•HR 4005 IH

1 National Security Letter issued under subsection 

2 (a). 

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

4 ‘minimization and destruction procedures’ means— 

5 ‘‘(A) specific procedures that are reason6 ably designed in light of the purpose and tech7 nique of a National Security Letter, to mini8 mize the acquisition and retention, and prohibit 

9 the dissemination, of nonpublicly available in10 formation concerning unconsenting United 

11 States persons consistent with the need of the 

12 United States to obtain, produce, and dissemi13 nate foreign intelligence information, including 

14 procedures to ensure that information obtained 

15 under a National Security Letter that does not 

16 meet the requirements of this section or is out17 side the scope of the National Security Letter, 

18 is returned or destroyed; 

19 ‘‘(B) procedures that require that nonpub20 licly available information, which is not foreign 

21 intelligence information (as defined in section 

22 101(e)(1) of the Foreign Intelligence Surveil23 lance Act of 1978 (50 U.S.C. 1801(e)(1))) shall 

24 not be disseminated in a manner that identifies 

25 any United States person, without the consent 


smartinez on DSKB9S0YB1PROD with BILLS
14 

•HR 4005 IH

1 of the United States person, unless the identity 

2 of the United States person is necessary to un3 derstand foreign intelligence information or as4 sess its importance; and 

5 ‘‘(C) notwithstanding subparagraphs (A) 

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

7 and dissemination of information that is evi8 dence of a crime which has been, is being, or 

9 is about to be committed and that is to be re10 tained or disseminated for law enforcement pur11 poses. 

12 ‘‘(e) REQUIREMENT THAT CERTAIN CONGRESSIONAL

13 BODIES BE INFORMED.— 

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

15 Director of the Federal Bureau of Investigation shall 

16 fully inform the Permanent Select Committee on In17 telligence and the Committee on the Judiciary of the 

18 Senate and the Select Committee on Intelligence and 

19 the Committee on the Judiciary of the House of 

20 Representatives concerning all National Security 

21 Letters issued under subsection (a). 

22 ‘‘(2) CONTENTS.—Each report under para23 graph (1) shall include— 

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

25 destruction procedures adopted by the Attorney 


smartinez on DSKB9S0YB1PROD with BILLS
15 

•HR 4005 IH

1 General under subsection (d), including any 

2 changes to the minimization and destruction 

3 procedures previously adopted by the Attorney 

4 General; 

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

6 proceedings under section 3511 of this title; 

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

8 information obtained with National Security 

9 Letters issued under subsection (a) has aided 

10 intelligence investigations and an explanation of 

11 how the information has aided the investiga12 tions; and 

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

14 information obtained with National Security 

15 Letters issued under subsection (a) has aided 

16 criminal prosecutions and an explanation of 

17 how the information has aided the prosecutions. 

18 ‘‘(f) USE OF INFORMATION.— 

19 ‘‘(1) IN GENERAL.— 

20 ‘‘(A) CONSENT.—Any information ac21 quired under a National Security Letter issued 

22 under subsection (a) concerning any United 

23 States person may be used and disclosed by 

24 Federal officers and employees without the con25 sent of the United States person only in accordVerDate Nov 24 2008 02:33 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\H4005.IH H4005

smartinez on DSKB9S0YB1PROD with BILLS
16 

•HR 4005 IH

1 ance with the minimization and destruction pro2 cedures established by the Attorney General 

3 under subsection (d). 

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

5 acquired under a National Security Letter 

6 issued under subsection (a) may be used or dis7 closed by Federal officers or employees except 

8 for lawful purposes. 

9 ‘‘(2) DISCLOSURE FOR LAW ENFORCEMENT

10 PURPOSES.—No information acquired under a Na11 tional Security Letter issued under subsection (a) 

12 shall be disclosed for law enforcement purposes un13 less the disclosure is accompanied by a statement 

14 that the information, or any information derived 

15 therefrom, may only be used in a criminal pro16 ceeding with the advance authorization of the Attor17 ney General. 

18 ‘‘(3) NOTIFICATION OF INTENDED DISCLOSURE

19 BY THE UNITED STATES.—Whenever the United 

20 States intends to enter into evidence or otherwise 

21 use or disclose in any trial, hearing, or other pro22 ceeding in or before any court, department, officer, 

23 agency, regulatory body, or other authority of the 

24 United States against an aggrieved person any infor25 mation obtained or derived from a National Security 


smartinez on DSKB9S0YB1PROD with BILLS
17 

•HR 4005 IH

1 Letter issued under subsection (a), the United 

2 States shall, before the trial, hearing, or other pro3 ceeding or at a reasonable time before an effort to 

4 so disclose or so use the information or submit the 

5 information in evidence, notify the aggrieved person 

6 and the court or other authority in which the infor7 mation is to be disclosed or used that the United 

8 States intends to so disclose or so use the informa9 tion. 

10 ‘‘(4) NOTIFICATION OF INTENDED DISCLOSURE

11 BY STATE OR POLITICAL SUBDIVISION.—Whenever 

12 any State or political subdivision thereof intends to 

13 enter into evidence or otherwise use or disclose in 

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

15 any court, department, officer, agency, regulatory 

16 body, or other authority of the State or political sub17 division thereof against an aggrieved person any in18 formation obtained or derived from a National Secu19 rity Letter issued under subsection (a), the State or 

20 political subdivision thereof shall notify the ag21 grieved person, the court or other authority in which 

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

23 Attorney General that the State or political subdivi24 sion thereof intends to so disclose or so use the in25 formation. 


smartinez on DSKB9S0YB1PROD with BILLS
18 

•HR 4005 IH

1 ‘‘(5) MOTION TO SUPPRESS.— 

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

3 against whom evidence obtained or derived from 

4 a National Security Letter issued under sub5 section (a) is to be, or has been, introduced or 

6 otherwise used or disclosed in any trial, hear7 ing, or other proceeding in or before any court, 

8 department, officer, agency, regulatory body, or 

9 other authority of the United States, or a State 

10 or political subdivision thereof, may move to 

11 suppress the evidence obtained or derived from 

12 the National Security Letter, as the case may 

13 be, on the grounds that— 

14 ‘‘(i) the information was acquired in 

15 violation of the Constitution or laws of the 

16 United States; or 

17 ‘‘(ii) the National Security Letter was 

18 not issued in accordance with the require19 ments of this section. 

20 ‘‘(B) TIMING.—A motion under subpara21 graph (A) shall be made before the trial, hear22 ing, or other proceeding unless there was no op23 portunity to make such a motion or the ag24 grieved person concerned was not aware of the 

25 grounds of the motion. 


smartinez on DSKB9S0YB1PROD with BILLS
19 

•HR 4005 IH

1 ‘‘(6) JUDICIAL REVIEW.— 

2 ‘‘(A) IN GENERAL.—In a circumstance de3 scribed in subparagraph (B), a United States 

4 district court or, where the motion is made be5 fore another authority, the United States dis6 trict court in the same district as the authority 

7 shall, if the Attorney General files an affidavit 

8 under oath that disclosure would harm the na9 tional security of the United States, review in 

10 camera such materials as may be necessary to 

11 determine whether the National Security Letter 

12 was lawfully issued. 

13 ‘‘(B) CIRCUMSTANCES.—A circumstance 

14 described in this subparagraph is a cir15 cumstance in which— 

16 ‘‘(i) a court or other authority is noti17 fied under paragraph (3) or (4); 

18 ‘‘(ii) a motion is made under para19 graph (5); or 

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

21 by an aggrieved person under any other 

22 statute or rule of the United States or any 

23 State before any court or other authority 

24 of the United States or any State to— 


smartinez on DSKB9S0YB1PROD with BILLS
20 

•HR 4005 IH

1 ‘‘(I) discover or obtain materials 

2 relating to a National Security Letter 

3 issued under subsection (a); or 

4 ‘‘(II) discover, obtain, or sup5 press evidence or information obtained 

6 or derived from a National Security 

7 Letter issued under subsection (a). 

8 ‘‘(C) DISCLOSURE.—In making a deter9 mination under subparagraph (A), unless the 

10 court finds that disclosure would not assist in 

11 determining any legal or factual issue pertinent 

12 to the case, the court may disclose to the ag13 grieved person, the counsel for the aggrieved 

14 person, or both, under the procedures and 

15 standards provided in the Classified Informa16 tion Procedures Act (18 U.S.C. App.) or other 

17 appropriate security procedures and protective 

18 orders, portions of the National Security Letter, 

19 or related materials. 

20 ‘‘(7) EFFECT OF DETERMINATION OF LAWFUL21 NESS.— 

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

23 States district court determines under para24 graph (6) that a National Security Letter was 

25 not issued in compliance with the Constitution 


smartinez on DSKB9S0YB1PROD with BILLS
21 

•HR 4005 IH

1 or laws of the United States, the court may 

2 suppress the evidence that was unlawfully ob3 tained or derived from the National Security 

4 Letter or otherwise grant the motion of the ag5 grieved person. 

6 ‘‘(B) LAWFUL ORDERS.—If a United 

7 States district court determines under para8 graph (6) that a National Security Letter was 

9 issued in accordance with the Constitution and 

10 laws of the United States, the court shall deny 

11 the motion of the aggrieved person, except to 

12 the extent that due process requires discovery 

13 or disclosure. 

14 ‘‘(8) BINDING FINAL ORDERS.—An order grant15 ing a motion or request under paragraph (6), a deci16 sion under this section that a National Security Let17 ter was not lawful, and an order of a United States 

18 district court requiring review or granting disclosure 

19 of an application, order, or other related materials 

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

21 the United States and the several States, except an 

22 appeal or petition to a United States court of ap23 peals or the Supreme Court of the United States. 

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


smartinez on DSKB9S0YB1PROD with BILLS
22 

•HR 4005 IH

1 ‘‘(1) the terms ‘agent of a foreign power’, ‘for2 eign power’, and ‘United States person’ have the 

3 meanings given those terms in section 101 of the 

4 Foreign Intelligence Surveillance Act of 1978 (50 

5 U.S.C. 1801); 

6 ‘‘(2) the term ‘aggrieved person’ means a per7 son whose information or records were sought or ob8 tained under this section; and 

9 ‘‘(3) the term ‘assessment’ means an assess10 ment, as that term is used in the guidelines entitled 

11 ‘The Attorney General’s Guidelines for Domestic 

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

13 (2) TECHNICAL AND CONFORMING AMEND14 MENT.—The table of sections for chapter 121 of 

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

16 the item relating to section 2709 and inserting the 

17 following: 

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

18 (b) NATIONAL SECURITY LETTER AUTHORITY FOR

19 CERTAIN FINANCIAL RECORDS.—Section 1114 of the 

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

21 is amended to read as follows: 

22 ‘‘SEC. 1114. NATIONAL SECURITY LETTER FOR CERTAIN FI23 NANCIAL RECORDS. 

24 ‘‘(a) AUTHORIZATION.— 


smartinez on DSKB9S0YB1PROD with BILLS
23 

•HR 4005 IH

1 ‘‘(1) IN GENERAL.—The Director of the Fed2 eral Bureau of Investigation, or a designee of the 

3 Director whose rank shall be no lower than Deputy 

4 Assistant Director at Bureau headquarters or Spe5 cial Agent in Charge in a Bureau field office, may 

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

7 institution, a National Security Letter requiring the 

8 production of— 

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

10 whom the financial institution has a financial 

11 relationship; 

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

13 with whom the financial institution has a finan14 cial relationship; 

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

16 customer or entity has had an account or other 

17 financial relationship with the financial institu18 tion (including the start date) and the type of 

19 account or other financial relationship; and 

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

21 identifier associated with the financial relation22 ship of a customer or entity to the financial in23 stitution. 

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

25 issued under this subsection may not require the 


smartinez on DSKB9S0YB1PROD with BILLS
24 

•HR 4005 IH

1 production of records or information not listed in 

2 paragraph (1). 

3 ‘‘(b) NATIONAL SECURITY LETTER REQUIRE4 MENTS.— 

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

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

7 requirements of subsections (b) through (g) of sec8 tion 2709 of title 18, United States Code, in the 

9 same manner and to the same extent as those provi10 sions apply with respect to a National Security Let11 ter issued under section 2709(a) of title 18, United 

12 States Code, to a wire or electronic communication 

13 service provider. 

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

15 Letter issued under subsection (a), the semiannual 

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

17 States Code, shall also be submitted to the Com18 mittee on Banking, Housing, and Urban Affairs of 

19 the Senate and the Committee on Financial Services 

20 of the House of Representatives. 

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

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

23 insofar as the sections relate to the operation of this sec24 tion), the term ‘financial institution’ has the same mean25 ing as in subsections (a)(2) and (c)(1) of section 5312 of 


smartinez on DSKB9S0YB1PROD with BILLS
25 

•HR 4005 IH

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

2 institution any part of which is located inside any State 

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

4 Puerto Rico, Guam, American Samoa, the Commonwealth 

5 of the Northern Mariana Islands, or the United States 

6 Virgin Islands.’’. 

7 (c) NATIONAL SECURITY LETTER AUTHORITY FOR

8 CERTAIN CONSUMER REPORT RECORDS.— 

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

10 Credit Reporting Act (15 U.S.C. 1681u) is amend11 ed— 

12 (A) by striking the section heading and in13 serting the following: 

14 ‘‘§ 626. National Security Letters for certain con15 sumer report records’’; 

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

17 and inserting the following: 

18 ‘‘(a) AUTHORIZATION.— 

19 ‘‘(1) IN GENERAL.—The Director of the Fed20 eral Bureau of Investigation, or a designee of the 

21 Director whose rank shall be no lower than Deputy 

22 Assistant Director at Bureau headquarters or Spe23 cial Agent in Charge in a Bureau field office, may 

24 issue in writing and cause to be served on a conVerDate Nov 24 2008 02:33 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\H4005.IH H4005

smartinez on DSKB9S0YB1PROD with BILLS
26 

•HR 4005 IH

1 sumer reporting agency a National Security Letter 

2 requiring the production of— 

3 ‘‘(A) the name of a consumer; 

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

5 consumer; 

6 ‘‘(C) the current and former places of em7 ployment of a consumer; and 

8 ‘‘(D) the name and address of any finan9 cial institution (as that term is defined in sec10 tion 1101 of the Right to Financial Privacy Act 

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

12 maintains or has maintained an account, to the 

13 extent that the information is in the files of the 

14 consumer reporting agency. 

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

16 issued under this subsection may not require the 

17 production of a consumer report. 

18 ‘‘(b) NATIONAL SECURITY LETTER REQUIRE19 MENTS.— 

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

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

22 requirements of subsections (b) through (g) of sec23 tion 2709 of title 18, United States Code, in the 

24 same manner and to the same extent as those provi25 sions apply with respect to a National Security LetVerDate Nov 24 2008 02:33 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\H4005.IH H4005

smartinez on DSKB9S0YB1PROD with BILLS
27 

•HR 4005 IH

1 ter issued under section 2709(a) of title 18, United 

2 States Code, to a wire or electronic communication 

3 service provider. 

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

5 Letter issued under subsection (a), the semiannual 

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

7 States Code, shall also be submitted to the Com8 mittee on Banking, Housing, and Urban Affairs of 

9 the Senate and the Committee on Financial Services 

10 of the House of Representatives.’’; 

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

12 and 

13 (D) by redesignating subsections (e) and 

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

15 respectively. 

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

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

18 (3) TECHNICAL AND CONFORMING AMEND19 MENT.—The table of sections for the Fair Credit 

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

21 by striking the items relating to sections 626 and 

22 627 and inserting the following: 

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

‘‘627. [Repealed].’’. 


smartinez on DSKB9S0YB1PROD with BILLS
28 

•HR 4005 IH

1 SEC. 102. JUDICIAL REVIEW OF NATIONAL SECURITY LET2 TERS. 

3 (a) REVIEW OF NONDISCLOSURE ORDERS.—Section 

4 3511(b) of title 18, United States Code, is amended to 

5 read as follows: 

6 ‘‘(b) NONDISCLOSURE.— 

7 ‘‘(1) IN GENERAL.— 

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

9 Security Letter under section 2709 of this title, 

10 section 626 of the Fair Credit Reporting Act 

11 (15 U.S.C. 1681u), section 1114 of the Right 

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

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

14 1947 (50 U.S.C. 436(a)), wishes to have a 

15 court review a nondisclosure requirement im16 posed in connection with the National Security 

17 Letter, the recipient shall notify the Govern18 ment not later than 21 days after the date of 

19 receipt of the National Security Letter or of no20 tice that an applicable nondisclosure require21 ment has been extended. 

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

23 days after the date of receipt of a notification 

24 under subparagraph (A), the Government shall 

25 apply for an order prohibiting the disclosure of 

26 particular information about the existence or 


smartinez on DSKB9S0YB1PROD with BILLS
29 

•HR 4005 IH

1 contents of the relevant National Security Let2 ter. An application under this subparagraph 

3 may be filed in the district court of the United 

4 States for any district within which the author5 ized investigation that is the basis for the Na6 tional Security Letter is being conducted. The 

7 applicable nondisclosure requirement shall re8 main in effect during the pendency of pro9 ceedings relating to the requirement. 

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 1 year, unless the 

15 facts justify a longer period of nondisclosure. 

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

17 United States rejects an application for a non18 disclosure order or extension thereof, the non19 disclosure requirement shall no longer be in ef20 fect. 

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

22 for a nondisclosure order or extension thereof under 

23 this subsection shall include— 

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

25 facts giving the applicant reason to believe that 


smartinez on DSKB9S0YB1PROD with BILLS
30 

•HR 4005 IH

1 disclosure of particular information about the 

2 existence or contents of a National Security 

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

4 applicable time period will result in— 

5 ‘‘(i) endangering the life or physical 

6 safety of any person; 

7 ‘‘(ii) flight from prosecution; 

8 ‘‘(iii) destruction of or tampering with 

9 evidence; 

10 ‘‘(iv) intimidation of potential wit11 nesses; 

12 ‘‘(v) interference with diplomatic rela13 tions; or 

14 ‘‘(vi) otherwise seriously endangering 

15 the national security of the United States 

16 by alerting a target, an associate of a tar17 get, or the foreign power of which the tar18 get is an agent, of the interest of the Gov19 ernment in the target; 

20 ‘‘(B) an explanation of how the harm iden21 tified under subparagraph (A) relates to the on22 going and authorized national security inves23 tigation to which the records sought are rel24 evant; 


smartinez on DSKB9S0YB1PROD with BILLS
31 

•HR 4005 IH

1 ‘‘(C) an explanation of how the nondisclo2 sure requirement is narrowly tailored to address 

3 the specific harm identified under subparagraph 

4 (A); and 

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

6 Government believes the nondisclosure require7 ment should apply. 

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

9 United States may issue a nondisclosure require10 ment order or extension thereof under this sub11 section if the court determines that— 

12 ‘‘(A) there is reason to believe that disclo13 sure of the information subject to the nondisclo14 sure requirement during the applicable time pe15 riod will result in— 

16 ‘‘(i) endangering the life or physical 

17 safety of any person; 

18 ‘‘(ii) flight from prosecution; 

19 ‘‘(iii) destruction of or tampering with 

20 evidence; 

21 ‘‘(iv) intimidation of potential wit22 nesses; 

23 ‘‘(v) interference with diplomatic rela24 tions; or 


smartinez on DSKB9S0YB1PROD with BILLS
32 

•HR 4005 IH

1 ‘‘(vi) otherwise seriously endangering 

2 the national security of the United States 

3 by alerting a target, an associate of a tar4 get, or the foreign power of which the tar5 get is an agent, of the interest of the Gov6 ernment in the target; 

7 ‘‘(B) the harm identified under subpara8 graph (A) relates to the ongoing and authorized 

9 national security investigation to which the 

10 records sought are relevant; and 

11 ‘‘(C) the nondisclosure requirement is nar12 rowly tailored to address the specific harm iden13 tified under subparagraph (A). 

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

15 this subsection may be renewed for additional peri16 ods of not longer than 1 year, unless the facts of the 

17 case justify a longer period of nondisclosure, upon 

18 submission of an application meeting the require19 ments of paragraph (2), and a determination by the 

20 court that the circumstances described in paragraph 

21 (3) continue to exist.’’. 

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

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

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

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


smartinez on DSKB9S0YB1PROD with BILLS
33 

•HR 4005 IH

1 finds that disclosure would not assist in determining any 

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

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

4 both, under the procedures and standards provided in the 

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

6 or other appropriate security procedures and protective or7 ders, portions of the National Security Letter, or related 

8 materials.’’. 

9 (c) CONFORMING AMENDMENTS.—Section 3511 of 

10 title 18, United States Code, is amended— 

11 (1) in subsection (a)— 

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

13 ‘‘REQUEST.—’’; 

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

15 ‘‘2709’’; 

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

17 and inserting ‘‘626’’; and 

18 (D) by striking ‘‘1114(a)(5)(A)’’ and in19 serting ‘‘1114’’; and 

20 (2) in subsection (c)— 

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

22 ‘‘FAILURE TO COMPLY.—’’; 

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

24 ‘‘2709’’; 


smartinez on DSKB9S0YB1PROD with BILLS
34 

•HR 4005 IH

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

2 and inserting ‘‘626’’; and 

3 (D) by striking ‘‘1114(a)(5)(A)’’ and in4 serting ‘‘1114’’. 

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

6 States Code, is repealed. 

7 SEC. 103. NATIONAL SECURITY LETTER COMPLIANCE PRO8 GRAM AND TRACKING DATABASE. 

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

10 Federal Bureau of Investigation shall establish a program 

11 to ensure compliance with the amendments made by sec12 tion 101. 

13 (b) TRACKING DATABASE.—The compliance program 

14 required under subsection (a) shall include the establish15 ment of a database, the purpose of which shall be to track 

16 all National Security Letters. 

17 (c) INFORMATION.—The database required under 

18 this section shall include— 

19 (1) a signed copy of each National Security 

20 Letter; 

21 (2) the date the National Security Letter was 

22 issued and for what type of information; 

23 (3) whether the National Security Letter seeks 

24 information regarding a United States person; 


smartinez on DSKB9S0YB1PROD with BILLS
35 

•HR 4005 IH

1 (4) identification of the ongoing and authorized 

2 national security investigation (other than an assess3 ment) to which the National Security Letter relates; 

4 (5) whether the National Security Letter seeks 

5 information regarding an individual who is the sub6 ject of the investigation described in paragraph (4); 

7 (6) the date on which the information requested 

8 was received and, if applicable, when the information 

9 was destroyed; and 

10 (7) whether the information gathered was dis11 closed for law enforcement purposes. 

12 (d) DEFINITIONS.—In this section— 

13 (1) the term ‘‘assessment’’ means an assess14 ment, as that term is used in the guidelines entitled 

15 ‘‘The Attorney General’s Guidelines for Domestic 

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

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

18 a National Security Letter issued by the Federal 

19 Bureau of Investigation under section 1114 of the 

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

21 3414), section 626 of the Fair Credit Reporting Act 

22 (15 U.S.C. 1681u), or section 2709 of title 18, 

23 United States Code. 


smartinez on DSKB9S0YB1PROD with BILLS
36 

•HR 4005 IH

1 SEC. 104. PUBLIC REPORTING ON NATIONAL SECURITY 

2 LETTERS. 

3 Section 118(c) of the USA PATRIOT Improvement 

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

5 is amended— 

6 (1) in paragraph (1)— 

7 (A) in the matter preceding subparagraph 

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

9 States persons’’; and 

10 (B) in subparagraph (A), by striking ‘‘, ex11 cluding the number of requests for subscriber 

12 information’’; 

13 (2) by redesignating paragraph (2) as para14 graph (3); and 

15 (3) by inserting after paragraph (1) the fol16 lowing: 

17 ‘‘(2) CONTENT.— 

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

19 subparagraph (B), each report required under 

20 this subsection shall include the total number of 

21 requests described in paragraph (1) requiring 

22 disclosure of information concerning— 

23 ‘‘(i) United States persons; 

24 ‘‘(ii) persons who are not United 

25 States persons; 


smartinez on DSKB9S0YB1PROD with BILLS
37 

•HR 4005 IH

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

2 authorized national security investigations; 

3 or 

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

5 of authorized national security investiga6 tions. 

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

8 number of requests for subscriber information 

9 under section 2709 of title 18, United States 

10 Code, a report required under this subsection 

11 need not provide information separated into 

12 each of the categories described in subpara13 graph (A).’’. 

14 SEC. 105. EMERGENCY DISCLOSURES. 

15 (a) ENHANCED PROTECTIONS FOR EMERGENCY DIS16 CLOSURES.— 

17 (1) STORED COMMUNICATIONS ACT.—Section 

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

19 (A) in subsection (b)(8)— 

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

21 inserting ‘‘reasonably’’; 

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

23 ‘‘involving’’; and 

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

25 the request is narrowly tailored to address 


smartinez on DSKB9S0YB1PROD with BILLS
38 

•HR 4005 IH

1 the emergency, subject to the limitations of 

2 subsection (d)’’; 

3 (B) in subsection (c)(4)— 

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

5 inserting ‘‘reasonably’’; 

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

7 ‘‘involving’’; and 

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

9 subject to the limitations of subsection 

10 (d)’’; 

11 (C) by redesignating subsection (d) as sub12 section (e); 

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

14 following: 

15 ‘‘(d) REQUIREMENT.— 

16 ‘‘(1) REQUEST.—If a governmental entity re17 quests that a provider divulge information under 

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

19 that the disclosure is on a voluntary basis and shall 

20 document the factual basis for believing that an 

21 emergency involving immediate danger of death or 

22 serious physical injury to a person requires disclo23 sure without delay of the information relating to the 

24 emergency. 


smartinez on DSKB9S0YB1PROD with BILLS
39 

•HR 4005 IH

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

2 days after the date on which a governmental entity 

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

4 (c)(4), a governmental entity shall file with the ap5 propriate court a signed, sworn statement of a su6 pervisory official of a rank designated by the head 

7 of the governmental entity setting forth the grounds 

8 for the emergency access.’’; and 

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

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

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

12 (b)(8) and (c)(4)’’. 

13 (2) RIGHT TO FINANCIAL PRIVACY ACT.— 

14 (A) EMERGENCY DISCLOSURES.—The 

15 Right to Financial Privacy Act of 1978 (12 

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

17 after section 1120 the following: 

18 ‘‘SEC. 1121. EMERGENCY DISCLOSURES. 

19 ‘‘(a) IN GENERAL.— 

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

21 divulge a record described in section 1114(a) per22 taining to a customer to a Government authority, if 

23 the financial institution reasonably believes that an 

24 emergency involving immediate danger of death or 

25 serious physical injury to a person requires discloVerDate Nov 24 2008 02:33 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\H4005.IH H4005

smartinez on DSKB9S0YB1PROD with BILLS
40 

•HR 4005 IH

1 sure without delay of information relating to the 

2 emergency and the request is narrowly tailored to 

3 address the emergency. 

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

5 authority requests that a financial institution divulge 

6 information under this section, the request shall 

7 specify that the disclosure is on a voluntary basis, 

8 and shall document the factual basis for believing 

9 that an emergency involving immediate danger of 

10 death or serious physical injury to a person requires 

11 disclosure without delay of the information. 

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

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

14 the financial institution the certificate required in section 

15 1103(b), signed by a supervisory official of a rank des16 ignated by the head of the Government authority. 

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

18 the date on which a Government authority obtains access 

19 to financial records under this section, the Government 

20 authority shall file with the appropriate court a signed, 

21 sworn statement of a supervisory official of a rank des22 ignated by the head of the Government authority setting 

23 forth the grounds for the emergency access. After filing 

24 a statement under this subsection, a Government authorVerDate Nov 24 2008 02:33 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00040 Fmt 6652 Sfmt 6201 E:\BILLS\H4005.IH H4005

smartinez on DSKB9S0YB1PROD with BILLS
41 

•HR 4005 IH

1 ity shall provide notice to the customer in accordance with 

2 section 1109. 

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

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

5 States shall submit to the Committee on the Judiciary and 

6 the Committee on Financial Services of the House of Rep7 resentatives and the Committee on the Judiciary and the 

8 Committee on Banking, Housing, and Urban Affairs of 

9 the Senate a report containing— 

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

11 Department of Justice has received voluntary disclo12 sures under this section; and 

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

14 those instances where— 

15 ‘‘(A) voluntary disclosures under this sec16 tion were made to the Department of Justice; 

17 and 

18 ‘‘(B) the investigation pertaining to those 

19 disclosures was closed without the filing of 

20 criminal charges. 

21 ‘‘(e) DEFINITION.—In this section, the term ‘finan22 cial institution’ has the meaning given that term in section 

23 1114(c).’’. 


smartinez on DSKB9S0YB1PROD with BILLS
42 

•HR 4005 IH

1 (B) CONFORMING AMENDMENTS.—The 

2 Right to Financial Privacy Act of 1978 (12 

3 U.S.C. 3401 et seq.) is amended— 

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

5 by striking ‘‘or 1114’’ and inserting 

6 ‘‘1114, or 1121’’; and 

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

8 3409(c)), by striking ‘‘1114(b)’’ and in9 serting ‘‘1121’’. 

10 (b) CLARIFICATION REGARDING DATA RETEN11 TION.—Subsection 2703(f) of title 18, United States 

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

13 ‘‘(3) NO DISCLOSURE WITHOUT COURT

14 ORDER.—A provider of wire or electronic commu15 nications services or a remote computing service who 

16 has received a request under this subsection shall 

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

18 until the provider has received a court order or other 

19 process.’’. 

20 SEC. 106. LEAST INTRUSIVE MEANS. 

21 (a) GUIDELINES.— 

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

23 issue guidelines (consistent with Executive Order 

24 12333 or any successor order) providing that, in na25 tional security investigations, the least intrusive colVerDate Nov 24 2008 02:33 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00042 Fmt 6652 Sfmt 6201 E:\BILLS\H4005.IH H4005

smartinez on DSKB9S0YB1PROD with BILLS
43 

•HR 4005 IH

1 lection techniques feasible shall be used if there is a 

2 choice between the use of more or less intrusive in3 formation collection methods. 

4 (2) SPECIFIC COLLECTION TECHNIQUES.—The 

5 guidelines required under this section shall provide 

6 guidance with regard to specific collection tech7 niques, including the use of National Security Let8 ters, considering such factors as— 

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

10 (B) the potential damage to reputation of 

11 individuals; and 

12 (C) any special concerns under the First 

13 Amendment to the Constitution of the United 

14 States relating to a potential recipient of a Na15 tional Security Letter or other legal process, in16 cluding a direction that prior to issuing a Na17 tional Security Letter or other legal process to 

18 a library or bookseller, investigative procedures 

19 aimed at obtaining the relevant information 

20 from entities other than a library or bookseller 

21 be used and have failed, or reasonably appear 

22 to be unlikely to succeed if tried or endanger 

23 lives if tried. 

24 (b) DEFINITIONS.—In this section: 


smartinez on DSKB9S0YB1PROD with BILLS
44 

•HR 4005 IH

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

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

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

4 similar forms of communication in print or digitally. 

5 (2) LIBRARY.—The term ‘‘library’’ means a li6 brary (as that term is defined in section 213(1) of 

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

8 9122(1))) whose services include access to the Inter9 net, books, journals, magazines, newspapers, or 

10 other similar forms of communication in print or 

11 digitally to patrons for their use, review, examina12 tion, or circulation. 

13 (3) NATIONAL SECURITY LETTER.—The term 

14 ‘‘National Security Letter’’ means a National Secu15 rity Letter issued by the Federal Bureau of Inves16 tigation under section 1114 of the Right to Finan17 cial Privacy Act of 1978 (12 U.S.C. 3414), section 

18 626 of the Fair Credit Reporting Act (15 U.S.C. 

19 1681u), or section 2709 of title 18, United States 

20 Code. 

21 SEC. 107. PRIVACY PROTECTIONS FOR SECTION 215 BUSI22 NESS RECORDS ORDERS. 

23 (a) PRIVACY PROTECTIONS FOR SECTION 215 BUSI24 NESS RECORDS ORDERS.— 


smartinez on DSKB9S0YB1PROD with BILLS
45 

•HR 4005 IH

1 (1) IN GENERAL.—Section 501(b) of the For2 eign Intelligence Surveillance Act of 1978 (50 

3 U.S.C. 1861(b)(2)) is amended— 

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

5 after the semicolon; 

6 (B) in paragraph (2)— 

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

8 such things being presumptively’’ and all 

9 that follows through the end of the sub10 paragraph and inserting a semicolon; and 

11 (ii) by striking subparagraph (B) and 

12 inserting the following: 

13 ‘‘(B) a statement of specific and 

14 articulable facts providing reason to believe that 

15 the tangible things sought— 

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

17 foreign power or an individual who is the 

18 subject of an ongoing and authorized na19 tional security investigation (other than an 

20 assessment (as defined in section 2709 of 

21 title 18, United States Code)); 

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

23 been in contact with, or otherwise directly 

24 linked to, a suspected agent of a foreign 

25 power or an individual who is the subject 


smartinez on DSKB9S0YB1PROD with BILLS
46 

•HR 4005 IH

1 of an ongoing and authorized national se2 curity investigation (other than an assess3 ment); or 

4 ‘‘(iii) pertain to the activities of a sus5 pected agent of a foreign power, where 

6 those activities are the subject of an ongo7 ing and authorized national security inves8 tigation (other than an assessment), and 

9 obtaining the records is the least intrusive 

10 means that could be used to identify per11 sons believed to be involved in the activi12 ties; and 

13 ‘‘(C) a statement of proposed minimization 

14 procedures; and’’; and 

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

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

17 requirement described in subsection (d), shall in18 clude— 

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

20 facts providing reason to believe that disclosure 

21 of particular information about the existence or 

22 contents of the order requiring the production 

23 of tangible things under this section during the 

24 applicable time period will result in— 


smartinez on DSKB9S0YB1PROD with BILLS
47 

•HR 4005 IH

1 ‘‘(i) endangering the life or physical 

2 safety of any person; 

3 ‘‘(ii) flight from prosecution; 

4 ‘‘(iii) destruction of or tampering with 

5 evidence; 

6 ‘‘(iv) intimidation of potential wit7 nesses; 

8 ‘‘(v) interference with diplomatic rela9 tions; or 

10 ‘‘(vi) otherwise seriously endangering 

11 the national security of the United States 

12 by alerting a target, an associate of a tar13 get, or the foreign power of which the tar14 get is an agent, of the interest of the Gov15 ernment in the target; 

16 ‘‘(B) an explanation of how the harm iden17 tified under subparagraph (A) is related to the 

18 authorized investigation to which the tangible 

19 things sought are relevant; 

20 ‘‘(C) an explanation of how the nondisclo21 sure requirement is narrowly tailored to address 

22 the specific harm identified under subparagraph 

23 (A); and 


smartinez on DSKB9S0YB1PROD with BILLS
48 

•HR 4005 IH

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

2 Government believes the nondisclosure require3 ment should apply.’’. 

4 (2) ORDER.—Section 501(c) of the Foreign In5 telligence Surveillance Act of 1978 (50 U.S.C. 

6 1861(c)) is amended— 

7 (A) in paragraph (1)— 

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

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

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

11 and that the proposed minimization proce12 dures meet the definition of minimization 

13 procedures under subsection (g)’’; and 

14 (ii) by striking the last sentence and 

15 inserting the following: ‘‘If the judge finds 

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

17 have been met, such order shall include a 

18 nondisclosure requirement, which may 

19 apply for not longer than 1 year, unless 

20 the facts justify a longer period of non21 disclosure, subject to the principles and 

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

23 and 

24 (B) in paragraph (2)— 


smartinez on DSKB9S0YB1PROD with BILLS
49 

•HR 4005 IH

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

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

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

4 ‘‘and’’ at the end; 

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

6 the period at the end and inserting ‘‘; 

7 and’’; and 

8 (iv) by adding at the end the fol9 lowing: 

10 ‘‘(F) shall direct that the minimization 

11 procedures be followed.’’. 

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

13 Foreign Intelligence Surveillance Act of 1978 (50 

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

15 ‘‘(d) NONDISCLOSURE.— 

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

17 order under subsection (c) that contains a nondisclo18 sure requirement shall disclose to any person the 

19 particular information specified in the nondisclosure 

20 requirement during the time period to which the re21 quirement applies. 

22 ‘‘(2) EXCEPTION.— 

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

24 an order under subsection (c) that contains a 

25 nondisclosure requirement may disclose inforVerDate Nov 24 2008 02:33 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00049 Fmt 6652 Sfmt 6201 E:\BILLS\H4005.IH H4005

smartinez on DSKB9S0YB1PROD with BILLS
50 

•HR 4005 IH

1 mation otherwise subject to any applicable non2 disclosure requirement to— 

3 ‘‘(i) those persons to whom disclosure 

4 is necessary in order to comply with an 

5 order under this section; 

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

7 legal advice or assistance regarding the 

8 order; or 

9 ‘‘(iii) other persons as permitted by 

10 the Director of the Federal Bureau of In11 vestigation or the designee of the Director. 

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

13 disclosure is made under subparagraph (A) 

14 shall be subject to the nondisclosure require15 ments applicable to a person to whom an order 

16 is directed under this section in the same man17 ner as the person to whom the order is directed. 

18 ‘‘(C) NOTIFICATION.—Any person who dis19 closes to a person described in subparagraph 

20 (A) information otherwise subject to a non21 disclosure requirement shall notify the person of 

22 the applicable nondisclosure requirement. 

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

24 Bureau of Investigation, or a designee of the Direc25 tor (whose rank shall be no lower than Assistant 


smartinez on DSKB9S0YB1PROD with BILLS
51 

•HR 4005 IH

1 Special Agent in Charge), may apply for renewals 

2 for the prohibition on disclosure of particular infor3 mation about the existence or contents of an order 

4 requiring the production of tangible things under 

5 this section for additional periods of not longer than 

6 1 year, unless the facts justify a longer period of 

7 nondisclosure. A nondisclosure requirement shall be 

8 renewed if a court having jurisdiction under para9 graph (4) determines that the application meets the 

10 requirements of subsection (b)(3). 

11 ‘‘(4) JURISDICTION.—An application for a re12 newal under this subsection shall be made to— 

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

14 section 103(a); or 

15 ‘‘(B) a United States Magistrate Judge 

16 under chapter 43 of title 28, United States 

17 Code, who is publicly designated by the Chief 

18 Justice of the United States to have the power 

19 to hear applications and grant orders for the 

20 production of tangible things under this section 

21 on behalf of a judge of the court established 

22 under section 103(a).’’. 

23 (4) MINIMIZATION.—Section 501(g) of the For24 eign Intelligence Surveillance Act of 1978 (50 

25 U.S.C. 1861(g)) is amended— 


smartinez on DSKB9S0YB1PROD with BILLS
52 

•HR 4005 IH

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

2 later than’’ and all that follows and inserting 

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

4 the production of tangible things under an 

5 order approved under this section or at any 

6 time after the production of tangible things 

7 under an order approved under this section, a 

8 judge may assess compliance with the mini9 mization procedures by reviewing the cir10 cumstances under which information concerning 

11 United States persons was acquired, retained, 

12 or disseminated.’’; and 

13 (B) in paragraph (2)(A), by inserting ‘‘ac14 quisition and’’ after ‘‘to minimize the’’. 

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

16 the Foreign Intelligence Surveillance Act of 1978 

17 (50 U.S.C. 1861(h)) is amended to read as follows: 

18 ‘‘(h) USE OF INFORMATION.— 

19 ‘‘(1) IN GENERAL.— 

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

21 information acquired from an order under this 

22 section concerning any United States person 

23 may be used and disclosed by Federal officers 

24 and employees without the consent of the 

25 United States person only in accordance with 


smartinez on DSKB9S0YB1PROD with BILLS
53 

•HR 4005 IH

1 the minimization procedures required under this 

2 section. 

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

4 things or information acquired under an order 

5 under this section may be used or disclosed by 

6 Federal officers or employees except for lawful 

7 purposes. 

8 ‘‘(2) DISCLOSURE FOR LAW ENFORCEMENT

9 PURPOSES.—No tangible things or information ac10 quired from an order under this section shall be dis11 closed for law enforcement purposes unless the dis12 closure is accompanied by a statement that the tan13 gible things or information, or any information de14 rived therefrom, may only be used in a criminal pro15 ceeding with the advance authorization of the Attor16 ney General. 

17 ‘‘(3) NOTIFICATION OF INTENDED DISCLOSURE

18 BY THE UNITED STATES.—Whenever the United 

19 States intends to enter into evidence or otherwise 

20 use or disclose in any trial, hearing, or other pro21 ceeding in or before any court, department, officer, 

22 agency, regulatory body, or other authority of the 

23 United States against an aggrieved person any tan24 gible things or information obtained or derived from 

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


smartinez on DSKB9S0YB1PROD with BILLS
54 

•HR 4005 IH

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

2 a reasonable time before an effort to so disclose or 

3 so use the tangible things or information or submit 

4 them in evidence, notify the aggrieved person and 

5 the court or other authority in which the tangible 

6 things or information are to be disclosed or used 

7 that the United States intends to so disclose or so 

8 use the tangible things or information. 

9 ‘‘(4) NOTIFICATION OF INTENDED DISCLOSURE

10 BY STATE OR POLITICAL SUBDIVISION.—Whenever 

11 any State or political subdivision thereof intends to 

12 enter into evidence or otherwise use or disclose in 

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

14 any court, department, officer, agency, regulatory 

15 body, or other authority of the State or political sub16 division thereof against an aggrieved person any tan17 gible things or information obtained or derived from 

18 an order issued under this section, the State or po19 litical subdivision thereof shall notify the aggrieved 

20 person, the court or other authority in which the 

21 tangible things or information are to be disclosed or 

22 used, and the Attorney General that the State or po23 litical subdivision thereof intends to so disclose or so 

24 use the tangible things or information. 

25 ‘‘(5) MOTION TO SUPPRESS.— 


smartinez on DSKB9S0YB1PROD with BILLS
55 

•HR 4005 IH

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

2 against whom evidence obtained or derived from 

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

4 has been, introduced or otherwise used or dis5 closed in any trial, hearing, or other proceeding 

6 in or before any court, department, officer, 

7 agency, regulatory body, or other authority of 

8 the United States, or a State or political sub9 division thereof, may move to suppress the evi10 dence obtained or derived from the order, as the 

11 case may be, on the grounds that— 

12 ‘‘(i) the tangible things or information 

13 were acquired in violation of the Constitu14 tion or laws of the United States; or 

15 ‘‘(ii) the order was not issued in ac16 cordance with the requirements of this sec17 tion. 

18 ‘‘(B) TIMING.—A motion under subpara19 graph (A) shall be made before the trial, hear20 ing, or other proceeding unless there was no op21 portunity to make such a motion or the ag22 grieved person concerned was not aware of the 

23 grounds of the motion. 

24 ‘‘(6) JUDICIAL REVIEW.— 


smartinez on DSKB9S0YB1PROD with BILLS
56 

•HR 4005 IH

1 ‘‘(A) IN GENERAL.—In a circumstance de2 scribed in subparagraph (B), a United States 

3 district court or, where the motion is made be4 fore another authority, the United States dis5 trict court in the same district as the authority 

6 shall, if the Attorney General files an affidavit 

7 under oath that disclosure would harm the na8 tional security of the United States, review in 

9 camera the application, order, and such other 

10 related materials relating to the order issued 

11 under this section as may be necessary to deter12 mine whether the order was lawfully authorized 

13 and served. 

14 ‘‘(B) CIRCUMSTANCES.—A circumstance 

15 described in this subparagraph is a cir16 cumstance in which— 

17 ‘‘(i) a court or other authority is noti18 fied under paragraph (3) or (4); 

19 ‘‘(ii) a motion is made under para20 graph (5); or 

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

22 by an aggrieved person under any other 

23 statute or rule of the United States or any 

24 State before any court or other authority 

25 of the United States or any State to— 


smartinez on DSKB9S0YB1PROD with BILLS
57 

•HR 4005 IH

1 ‘‘(I) discover or obtain applica2 tions, orders, or other materials relat3 ing to an order issued under this sec4 tion; or 

5 ‘‘(II) discover, obtain, or sup6 press evidence or information obtained 

7 or derived from an order issued under 

8 this section. 

9 ‘‘(C) DISCLOSURE.—In making a deter10 mination under subparagraph (A), unless the 

11 United States district court finds that disclo12 sure would not assist in determining any legal 

13 or factual issue pertinent to the case, the court 

14 may disclose to the aggrieved person, the coun15 sel for the aggrieved person, or both, under the 

16 procedures and standards provided in the Clas17 sified Information Procedures Act (18 U.S.C. 

18 App.) or other appropriate security procedures 

19 and protective orders, portions of the applica20 tion, order, or other related materials, or evi21 dence or information obtained or derived from 

22 the order. 

23 ‘‘(7) EFFECT OF DETERMINATION OF LAWFUL24 NESS.— 


smartinez on DSKB9S0YB1PROD with BILLS
58 

•HR 4005 IH

1 ‘‘(A) UNLAWFUL ORDERS.—If a United 

2 States district court determines under para3 graph (6) that an order was not authorized or 

4 served in compliance with the Constitution or 

5 laws of the United States, the court may sup6 press the evidence which was unlawfully ob7 tained or derived from the order or otherwise 

8 grant the motion of the aggrieved person. 

9 ‘‘(B) LAWFUL ORDERS.—If the court de10 termines that an order issued under this section 

11 was lawfully authorized and served, it shall 

12 deny the motion of the aggrieved person except 

13 to the extent that due process requires dis14 covery or disclosure. 

15 ‘‘(8) BINDING FINAL ORDERS.—An order grant16 ing a motion or request under paragraph (6), a deci17 sion under this section that an order issued under 

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

19 States district court requiring review or granting 

20 disclosure of an application, order, or other mate21 rials relating to an order issued under this section 

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

23 the United States and the several States, except an 

24 appeal or petition to a United States court of ap25 peals or the Supreme Court of the United States.’’. 


smartinez on DSKB9S0YB1PROD with BILLS
59 

•HR 4005 IH

1 (6) DEFINITION.— 

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

3 Intelligence Surveillance Act of 1978 (50 

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

5 the end the following: 

6 ‘‘SEC. 503. DEFINITIONS. 

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

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

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

10 in title I shall have the meanings given those terms 

11 by section 101. 

12 ‘‘(2) AGGRIEVED PERSON.—The term ‘ag13 grieved person’ means any person whose tangible 

14 things or information were acquired under an order 

15 issued under this title.’’. 

16 (B) TECHNICAL AND CONFORMING AMEND17 MENT.—The table of contents in the first sec18 tion of the Foreign Intelligence Surveillance Act 

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

20 by inserting after the item relating to section 

21 502 the following: 

‘‘Sec. 503. Definitions.’’. 

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

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

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

25 ‘‘(f) JUDICIAL REVIEW.— 


smartinez on DSKB9S0YB1PROD with BILLS
60 

•HR 4005 IH

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

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

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

4 and the return date specified in the order, the per5 son may file, in the court established under section 

6 103(a) or in the United States district court for the 

7 judicial district within which the person resides, is 

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

9 to modify or set aside the order. The period for com10 pliance with an order issued under subsection (c), or 

11 any portion of the order, shall be tolled while a peti12 tion under this paragraph is pending in the court. 

13 A petition under this paragraph shall specify each 

14 ground upon which the petitioner relies in seeking 

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

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

17 section or upon any constitutional or other legal 

18 right or privilege of the person. 

19 ‘‘(2) NONDISCLOSURE ORDER.— 

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

21 from disclosing information under subsection 

22 (d) may file, in the court established under sec23 tion 103(a) or in the United States district 

24 court for the judicial district within which the 

25 person resides, is found, or transacts business, 


smartinez on DSKB9S0YB1PROD with BILLS
61 

•HR 4005 IH

1 a petition for the court to set aside the non2 disclosure requirement. A petition under this 

3 subparagraph shall specify each ground upon 

4 which the petitioner relies in seeking relief, and 

5 may be based upon any failure of the nondisclo6 sure requirement to comply with this section or 

7 upon any constitutional or other legal right or 

8 privilege of the person. 

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

10 or set aside a nondisclosure requirement unless 

11 the court determines that— 

12 ‘‘(i) there is reason to believe that dis13 closure of the information subject to the 

14 nondisclosure requirement during the ap15 plicable time period will result in— 

16 ‘‘(I) endangering the life or phys17 ical safety of any person; 

18 ‘‘(II) flight from prosecution; 

19 ‘‘(III) destruction of or tam20 pering with evidence; 

21 ‘‘(IV) intimidation of potential 

22 witnesses; 

23 ‘‘(V) interference with diplomatic 

24 relations; or 


smartinez on DSKB9S0YB1PROD with BILLS
62 

•HR 4005 IH

1 ‘‘(VI) otherwise seriously endan2 gering the national security of the 

3 United States by alerting a target, an 

4 associate of a target, or the foreign 

5 power of which the target is an agent, 

6 of the interest of the Government in 

7 the target; 

8 ‘‘(ii) the harm identified under clause 

9 (i) relates to the authorized investigation 

10 to which the tangible things sought are rel11 evant; and 

12 ‘‘(iii) the nondisclosure requirement is 

13 narrowly tailored to address the specific 

14 harm identified under clause (i). 

15 ‘‘(3) RULEMAKING.— 

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

17 days after the date of enactment of the JUS18 TICE Act, the court established under section 

19 103(a) shall comply with section 103(g) by es20 tablishing any rules and procedures and taking 

21 any actions as are reasonably necessary to ad22 minister the responsibilities of the court under 

23 this subsection. 

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

25 after the date on which the court promulgates 


smartinez on DSKB9S0YB1PROD with BILLS
63 

•HR 4005 IH

1 rules and procedures under subparagraph (A), 

2 the court established under section 103(a) shall 

3 transmit a copy of the rules and procedures, in 

4 an unclassified for to the greatest extent pos5 sible (with a classified annex, if necessary), to 

6 the persons and entities listed in section 

7 103(g)(2). 

8 ‘‘(4) DISCLOSURES TO PETITIONERS.—In mak9 ing determinations under this subsection, unless the 

10 court finds that disclosure would not assist in deter11 mining any legal or factual issue pertinent to the 

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

13 counsel for the petitioner, or both, under the proce14 dures and standards provided in the Classified Infor15 mation Procedures Act (18 U.S.C. App.) or other 

16 appropriate security procedures and protective or17 ders, portions of the application, order, or other re18 lated materials.’’. 

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

20 PATRIOT Improvement and Reauthorization Act of 2005 

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

22 1861 note, and 50 U.S.C. 1862 note) is repealed. 

23 SEC. 108. TECHNICAL AND CONFORMING AMENDMENTS. 

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

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


smartinez on DSKB9S0YB1PROD with BILLS
64 

•HR 4005 IH

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

2 having been notified of the applicable disclosure prohibi3 tions or confidentiality requirements of section 2709 of 

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

5 (15 U.S.C. 1681u), section 1114 of the Right to Financial 

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

7 the National Security Act of 1947 (50 U.S.C. 436), know8 ingly’’. 

9 (b) OTHER LAW.—Section 507(b) of the National Se10 curity Act of 1947 (50 U.S.C. 415b(b)) is amended— 

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

12 (2) by redesignating paragraph (6) as para13 graph (4). 

14 TITLE II—REASONABLE SAFE15 GUARDS TO PROTECT THE 

16 PRIVACY OF AMERICANS’ 

17 HOMES 

18 SEC. 201. LIMITATION ON AUTHORITY TO DELAY NOTICE 

19 OF SEARCH WARRANTS. 

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

21 amended— 

22 (1) in subsection (b)— 

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

24 have an adverse result (as defined in section 

25 2705, except if the adverse results consist only 


smartinez on DSKB9S0YB1PROD with BILLS
65 

•HR 4005 IH

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

2 endanger the life or physical safety of an indi3 vidual, result in flight from prosecution, result 

4 in the destruction of or tampering with the evi5 dence sought under the warrant, or result in in6 timidation of potential witnesses’’; and 

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

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

9 after the date of its execution.’’; 

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

11 cause shown’’ and all that follows and inserting 

12 ‘‘upon application of the Attorney General, the Dep13 uty Attorney General, or an Associate Attorney Gen14 eral, for additional periods of not more than 21 days 

15 for each application, if the court finds, for each ap16 plication, reasonable cause to believe that notice of 

17 the execution of the warrant will endanger the life 

18 or physical safety of an individual, result in flight 

19 from prosecution, result in the destruction of or 

20 tampering with the evidence sought under the war21 rant, or result in intimidation of potential wit22 nesses.’’; 

23 (3) by redesignating subsection (d) as sub24 section (e); and 


smartinez on DSKB9S0YB1PROD with BILLS
66 

•HR 4005 IH

1 (4) by inserting after subsection (c) the fol2 lowing: 

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

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

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

6 any evidence derived therefrom may not be received in evi7 dence in any trial, hearing, or other proceeding in or be8 fore any court, grand jury, department, officer, agency, 

9 regulatory body, legislative committee, or other authority 

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

11 thereof if the property or material was obtained in viola12 tion of this section, or if notice required by this section 

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

14 or was not timely provided.’’. 

15 TITLE III—REASONABLE SAFE16 GUARDS TO PROTECT THE 

17 PRIVACY OF AMERICANS’ 

18 COMMUNICATIONS 

19 SEC. 301. LIMITATIONS ON ROVING WIRETAPS UNDER FOR20 EIGN INTELLIGENCE SURVEILLANCE ACT. 

21 Section 105(c) of the Foreign Intelligence Surveil22 lance Act of 1978 (50 U.S.C. 1805(c)) is amended— 

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

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


smartinez on DSKB9S0YB1PROD with BILLS
67 

•HR 4005 IH

1 ‘‘(A)(i) the identity of the target of the elec2 tronic surveillance, if known; or 

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

4 a description of the specific target and the nature 

5 and location of the facilities and places at which the 

6 electronic surveillance will be directed; 

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

8 facilities or places at which the electronic surveil9 lance will be directed, if known; or 

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

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

12 (2) in paragraph (2)— 

13 (A) by redesignating subparagraphs (B) 

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

15 respectively; and 

16 (B) by inserting after subparagraph (A) 

17 the following: 

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

19 which the electronic surveillance will be directed 

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

21 that the electronic surveillance be conducted 

22 only for such time as it is reasonable to pre23 sume that the target of the surveillance is or 

24 was reasonably proximate to the particular fa25 cility or place;’’. 


smartinez on DSKB9S0YB1PROD with BILLS
68 

•HR 4005 IH

1 SEC. 302. PRIVACY PROTECTIONS FOR PEN REGISTERS 

2 AND TRAP AND TRACE DEVICES. 

3 (a) CRIMINAL AUTHORITY.— 

4 (1) APPLICATION FOR AN ORDER.—Section 

5 3122(b) of title 18, United States Code, is amended 

6 by striking paragraph (2) and inserting the fol7 lowing: 

8 ‘‘(2) a statement by the applicant that the in9 formation likely to be obtained is— 

10 ‘‘(A) relevant to an ongoing criminal inves11 tigation being conducted by that agency; and 

12 ‘‘(B) there are specific and articulable 

13 facts providing reason to believe that the infor14 mation— 

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

16 the subject of an ongoing criminal inves17 tigation; 

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

19 been in contact with, or otherwise directly 

20 linked to, an individual who is the subject 

21 of an ongoing criminal investigation; or 

22 ‘‘(iii) pertain to the activities of an in23 dividual who is the subject of an ongoing 

24 criminal investigation, where those activi25 ties are the subject of an ongoing criminal 

26 investigation, and obtaining the records is 


smartinez on DSKB9S0YB1PROD with BILLS
69 

•HR 4005 IH

1 the least intrusive means that could be 

2 used to identify persons believed to be in3 volved in the activities.’’. 

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

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

6 (A) in paragraph (1), by striking ‘‘the at7 torney for the Government has certified to the 

8 court that the information likely to be obtained 

9 by such installation and use is relevant to an 

10 ongoing criminal investigation.’’ and inserting 

11 ‘‘the application meets the requirements of sec12 tion 3122.’’; and 

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

14 State law enforcement or investigative officer’’ 

15 and all that follows and inserting ‘‘the applica16 tion meets the requirements of section 3122.’’. 

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

18 United States Code, is amended— 

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

20 by striking ‘‘law enforcement agencies of the 

21 Department of Justice’’ and inserting ‘‘attor22 neys for the Government’’; 

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

24 the end; 


smartinez on DSKB9S0YB1PROD with BILLS
70 

•HR 4005 IH

1 (C) in paragraph (5), by striking the pe2 riod and inserting a semicolon; and 

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

4 by striking ‘‘The Attorney General’’ and insert5 ing the following: 

6 ‘‘(a) REPORT TO CONGRESS.—The Attorney Gen7 eral’’; and 

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

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

10 the applications for any extensions were granted as 

11 applied for, modified, or denied; 

12 ‘‘(7) the specific types of dialing, routing, ad13 dressing, or signaling information sought in the ap14 plication and obtained with the order; and 

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

16 Government is or was a party regarding the inter17 pretation of this chapter. 

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

19 annually make public a full and complete report con20 cerning the number of applications for pen register orders 

21 and orders for trap and trace devices applied for under 

22 this chapter and the number of the orders and extensions 

23 of the orders granted or denied under this chapter during 

24 the preceding calendar year. Each report under this sub25 section shall include a summary and analysis of the data 


smartinez on DSKB9S0YB1PROD with BILLS
71 

•HR 4005 IH

1 required to be reported to Congress under subsection 

2 (a).’’. 

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

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

5 following: 

6 ‘‘(e) NOTICE.— 

7 ‘‘(1) INVENTORY.—A court that receives an ap8 plication for an order or extension under section 

9 3122(a) shall cause to be served on the persons 

10 named in the application, and any other party to 

11 communications the court determines should receive 

12 notice in the interest of justice, an inventory, includ13 ing— 

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

15 order or extension under section 3122(a) and 

16 whether the court granted or denied the appli17 cation; and 

18 ‘‘(B) if the order or extension was grant19 ed— 

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

21 or extension and the period of authorized, 

22 approved, or disapproved use of the pen 

23 register or trap and trace device; 


smartinez on DSKB9S0YB1PROD with BILLS
72 

•HR 4005 IH

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

2 and trace device was installed or used dur3 ing the period authorized; and 

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

5 routing, addressing, or signaling informa6 tion sought in the application and collected 

7 by the pen register or trap and trace de8 vice. 

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

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

11 not later than 90 days after— 

12 ‘‘(A) the date of the filing of the applica13 tion for an order or extension under section 

14 3122(a) that is denied; or 

15 ‘‘(B) the date on which an order, or exten16 sions thereof, that is granted terminates. 

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

18 order postponing the service of the inventory re19 quired under paragraph (1) upon a showing of good 

20 cause by an attorney for the Government. 

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

22 the court may make available for inspection by a 

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

24 the person, such portions of the collected commuVerDate Nov 24 2008 02:33 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00072 Fmt 6652 Sfmt 6201 E:\BILLS\H4005.IH H4005

smartinez on DSKB9S0YB1PROD with BILLS
73 

•HR 4005 IH

1 nications, applications, and orders as the court de2 termines to be in the interest of justice.’’. 

3 (b) FOREIGN INTELLIGENCE AUTHORITY.— 

4 (1) APPLICATION.—Section 402(c) of the For5 eign Intelligence Surveillance Act of 1978 (50 

6 U.S.C. 1842(c)) is amended— 

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

8 at the end; and 

9 (B) by striking paragraph (2) and insert10 ing the following: 

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

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

13 ongoing and authorized national security inves14 tigation (other than an assessment (as defined 

15 in section 2709 of title 18, United States 

16 Code)); and 

17 ‘‘(B) there are specific and articulable 

18 facts providing reason to believe that the 

19 records— 

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

21 foreign power or an individual who is the 

22 subject of an ongoing and authorized na23 tional security investigation (other than an 

24 assessment); 


smartinez on DSKB9S0YB1PROD with BILLS
74 

•HR 4005 IH

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

2 been in contact with, or otherwise directly 

3 linked to, a suspected agent of a foreign 

4 power or an individual who is the subject 

5 of an ongoing and authorized national se6 curity investigation (other than an assess7 ment); or 

8 ‘‘(iii) pertain to the activities of a sus9 pected agent of a foreign power, where 

10 those activities are the subject of an ongo11 ing and authorized national security inves12 tigation (other than an assessment), and 

13 obtaining the records is the least intrusive 

14 means that could be used to identify per15 sons believed to be involved in the activi16 ties; and 

17 ‘‘(3) a statement of proposed minimization pro18 cedures.’’. 

19 (2) MINIMIZATION.— 

20 (A) DEFINITION.—Section 401 of the For21 eign Intelligence Surveillance Act of 1978 (50 

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

23 the following: 

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

25 means— 


smartinez on DSKB9S0YB1PROD with BILLS
75 

•HR 4005 IH

1 ‘‘(A) specific procedures that are reason2 ably designed in light of the purpose and tech3 nique of an order for the installation and use 

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

5 minimize the acquisition and retention, and pro6 hibit the dissemination, of nonpublicly available 

7 information concerning unconsenting United 

8 States persons consistent with the need of the 

9 United States to obtain, produce, and dissemi10 nate foreign intelligence information; 

11 ‘‘(B) procedures that require that nonpub12 licly available information, which is not foreign 

13 intelligence information, as defined in section 

14 101(e)(1), shall not be disseminated in a man15 ner that identifies any United States person, 

16 without such person’s consent, unless such per17 son’s identity is necessary to understand foreign 

18 intelligence information or assess its impor19 tance; and 

20 ‘‘(C) notwithstanding subparagraphs (A) 

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

22 and dissemination of information that is evi23 dence of a crime which has been, is being, or 

24 is about to be committed and that is to be reVerDate Nov 24 2008 02:33 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00075 Fmt 6652 Sfmt 6201 E:\BILLS\H4005.IH H4005

smartinez on DSKB9S0YB1PROD with BILLS
76 

•HR 4005 IH

1 tained or disseminated for law enforcement pur2 poses.’’. 

3 (B) PEN REGISTERS AND TRAP AND TRACE

4 DEVICES.—Section 402 of the Foreign Intel5 ligence Surveillance Act of 1978 (50 U.S.C. 

6 1842) is amended— 

7 (i) in subsection (d)— 

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

9 ‘‘, and that the proposed minimization 

10 procedures meet the definition of 

11 minimization procedures under this 

12 title’’ before the period at the end; 

13 and 

14 (II) in paragraph (2)(B)— 

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

16 striking ‘‘and’’ after the semi17 colon; and 

18 (bb) by adding at the end 

19 the following: 

20 ‘‘(iv) the minimization procedures be 

21 followed; and’’; and 

22 (ii) by adding at the end the fol23 lowing: 

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

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


smartinez on DSKB9S0YB1PROD with BILLS
77 

•HR 4005 IH

1 and trace device is approved under an order or an exten2 sion under this section, the judge may assess compliance 

3 with the minimization procedures by reviewing the cir4 cumstances under which information concerning United 

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

6 (C) EMERGENCIES.—Section 403 of the 

7 Foreign Intelligence Surveillance Act of 1978 

8 (50 U.S.C. 1843) is amended— 

9 (i) by redesignating subsection (c) as 

10 (d); and 

11 (ii) by inserting after subsection (b) 

12 the following: 

13 ‘‘(c) If the Attorney General authorizes the emer14 gency installation and use of a pen register or trap and 

15 trace device under this section, the Attorney General shall 

16 require that the minimization procedures required by this 

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

18 (D) USE OF INFORMATION.—Section 

19 405(a) of the Foreign Intelligence Surveillance 

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

21 striking ‘‘provisions of’’ and inserting ‘‘mini22 mization procedures required under’’. 


smartinez on DSKB9S0YB1PROD with BILLS
78 

•HR 4005 IH

1 SEC. 303. REPEAL OF TELECOMMUNICATIONS IMMUNITY. 

2 (a) IN GENERAL.—The Foreign Intelligence Surveil3 lance Act of 1978 is amended by striking title VIII (50 

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

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

6 amendments made by this section shall be construed to 

7 affect any limitation on liability otherwise provided under 

8 titles I through VII of the Foreign Intelligence Surveil9 lance Act of 1978 (50 U.S.C. 1801 et seq.), title 18, 

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

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

12 made by that Act. 

13 (c) TECHNICAL AND CONFORMING AMENDMENT.— 

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

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

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

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

18 SEC. 304. PROHIBITION ON BULK COLLECTION UNDER FISA 

19 AMENDMENTS ACT. 

20 Section 702(g)(2)(A) of the Foreign Intelligence Sur21 veillance Act of 1978 (50 U.S.C. 1881a(g)(2)(A)) is 

22 amended— 

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

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

25 and 

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


smartinez on DSKB9S0YB1PROD with BILLS
79 

•HR 4005 IH

1 ‘‘(vii) the acquisition of the contents 

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

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

4 communication is limited to communica5 tions to which any party is an individual 

6 target (which shall not be limited to known 

7 or named individuals) who is reasonably 

8 believed to be located outside of the United 

9 States, and a significant purpose of the ac10 quisition of the communications of the tar11 get is to obtain foreign intelligence infor12 mation; and’’. 

13 SEC. 305. PROHIBITION ON REVERSE TARGETING UNDER 

14 FISA AMENDMENTS ACT. 

15 Section 702 of the Foreign Intelligence Surveillance 

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

17 (1) in subsection (b)(2), by striking ‘‘the pur18 pose’’ and all that follows and inserting the fol19 lowing: ‘‘a significant purpose of the acquisition is to 

20 acquire the communications of a particular, known 

21 person reasonably believed to be located in the 

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

23 (2) in subsection (d)(1)(A)— 

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

25 the following: ‘‘ensure— 


smartinez on DSKB9S0YB1PROD with BILLS
80 

•HR 4005 IH

1 ‘‘(i) that’’; and 

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

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

4 title I, if otherwise required, when a sig5 nificant purpose of an acquisition author6 ized under subsection (a) is to acquire the 

7 communications of a particular, known 

8 person reasonably believed to be located in 

9 the United States; and’’; 

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

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

12 the following: ‘‘ensure— 

13 ‘‘(aa) that’’; and 

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

15 ‘‘(bb) that an application is 

16 filed under title I, if otherwise re17 quired, when a significant pur18 pose of an acquisition authorized 

19 under subsection (a) is to acquire 

20 the communications of a par21 ticular, known person reasonably 

22 believed to be located in the 

23 United States; and’’; and 

24 (4) in subsection (i)(2)(B)(i)— 


smartinez on DSKB9S0YB1PROD with BILLS
81 

•HR 4005 IH

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

2 the following: ‘‘ensure— 

3 ‘‘(I) that’’; and 

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

5 ‘‘(II) that an application is filed 

6 under title I, if otherwise required, 

7 when a significant purpose of an ac8 quisition authorized under subsection 

9 (a) is to acquire the communications 

10 of a particular, known person reason11 ably believed to be located in the 

12 United States; and’’. 

13 SEC. 306. LIMITS ON USE OF UNLAWFULLY OBTAINED IN14 FORMATION UNDER FISA AMENDMENTS ACT. 

15 Section 702(i)(3) of the Foreign Intelligence Surveil16 lance Act of 1978 (50 U.S.C. 1881a(i)(3)) is amended by 

17 striking subparagraph (B) and inserting the following: 

18 ‘‘(B) CORRECTION OF DEFICIENCIES.— 

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

20 that a certification required by subsection 

21 (g) does not contain all of the required ele22 ments, or that the procedures required by 

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

24 with the requirements of those subsections 

25 or the Fourth Amendment to the ConstituVerDate Nov 24 2008 02:33 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00081 Fmt 6652 Sfmt 6201 E:\BILLS\H4005.IH H4005

smartinez on DSKB9S0YB1PROD with BILLS
82 

•HR 4005 IH

1 tion of the United States, the Court shall 

2 issue an order directing the Government 

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

4 extent required by the order of the 

5 Court— 

6 ‘‘(I) correct any deficiency identi7 fied by the order of the Court not 

8 later than 30 days after the date on 

9 which the Court issues the order; or 

10 ‘‘(II) cease the acquisition au11 thorized under subsection (a). 

12 ‘‘(ii) LIMITATION ON USE OF INFOR13 MATION.— 

14 ‘‘(I) IN GENERAL.—Except as 

15 provided in subclause (II), no infor16 mation obtained or evidence derived 

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

18 concerning any United States person 

19 shall be received in evidence or other20 wise disclosed in any trial, hearing, or 

21 other proceeding in or before any 

22 court, grand jury, department, office, 

23 agency, regulatory body, legislative 

24 committee, or other authority of the 

25 United States, a State, or political 


smartinez on DSKB9S0YB1PROD with BILLS
83 

•HR 4005 IH

1 subdivision thereof, and no informa2 tion concerning any United States 

3 person acquired from the acquisition 

4 shall subsequently be used or dis5 closed in any other manner by Fed6 eral officers or employees without the 

7 consent of the United States person, 

8 except with the approval of the Attor9 ney General if the information indi10 cates a threat of death or serious bod11 ily harm to any person. 

12 ‘‘(II) EXCEPTION.—If the Gov13 ernment corrects any deficiency iden14 tified by the order of the Court under 

15 clause (i), the Court may permit the 

16 use or disclosure of information ac17 quired before the date of the correc18 tion under such minimization proce19 dures as the Court shall establish for 

20 purposes of this clause.’’. 


smartinez on DSKB9S0YB1PROD with BILLS
84 

•HR 4005 IH

1 SEC. 307. PRIVACY PROTECTIONS FOR INTERNATIONAL 

2 COMMUNICATIONS OF AMERICANS COL3 LECTED UNDER FISA AMENDMENTS ACT. 

4 (a) IN GENERAL.—Title VII of the Foreign Intel5 ligence Surveillance Act of 1978 (50 U.S.C. 1881) is 

6 amended by adding at the end the following: 

7 ‘‘SEC. 709. ADDITIONAL SAFEGUARDS FOR COMMUNICA8 TIONS OF PERSONS IN THE UNITED STATES. 

9 ‘‘(a) LIMITATIONS ON ACQUISITION OF COMMUNICA10 TIONS.— 

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

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

13 acquired under this title if the Government knows 

14 before or at the time of acquisition that the commu15 nication is to or from a person reasonably believed 

16 to be located in the United States. 

17 ‘‘(2) EXCEPTION.— 

18 ‘‘(A) IN GENERAL.—In addition to any au19 thority under title I to acquire communications 

20 described in paragraph (1), the communications 

21 may be acquired if— 

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

23 communication concerns international ter24 rorist activities directed against the United 

25 States, or activities in preparation there26 for; 


smartinez on DSKB9S0YB1PROD with BILLS
85 

•HR 4005 IH

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

2 that the target reasonably believed to be 

3 located outside the United States is an 

4 agent of a foreign power and the foreign 

5 power is a group engaged in international 

6 terrorism or activities in preparation there7 for; or 

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

9 the acquisition is necessary to prevent 

10 death or serious bodily harm. 

11 ‘‘(B) ACCESS TO COMMUNICATIONS.— 

12 Communications acquired under this paragraph 

13 shall be treated in accordance with subsection 

14 (b). 

15 ‘‘(3) PROCEDURES FOR DETERMINATIONS BE16 FORE OR AT THE TIME OF ACQUISITION.— 

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

18 days after the date of enactment of the JUS19 TICE Act, the Attorney General, in consulta20 tion with the Director of National Intelligence, 

21 shall submit to the Foreign Intelligence Surveil22 lance Court for approval procedures for deter23 mining before or at the time of acquisition, 

24 where reasonably practicable, whether a com25 munication is to or from a person reasonably 


smartinez on DSKB9S0YB1PROD with BILLS
86 

•HR 4005 IH

1 believed to be located in the United States and 

2 whether the exception under paragraph (2) ap3 plies to that communication. 

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

5 Surveillance Court shall approve the procedures 

6 submitted under subparagraph (A) if the proce7 dures are reasonably designed to determine be8 fore or at the time of acquisition, where reason9 ably practicable, whether a communication is to 

10 or from a person reasonably believed to be lo11 cated in the United States and whether the ex12 ception under paragraph (2) applies to that 

13 communication. 

14 ‘‘(C) PROCEDURES DO NOT MEET RE15 QUIREMENTS.—If the Foreign Intelligence Sur16 veillance Court concludes that the procedures 

17 submitted under subparagraph (A) do not meet 

18 the requirements of subparagraph (B), the 

19 Court shall enter an order so stating and pro20 vide a written statement for the record of the 

21 reasons for the determination. The Government 

22 may appeal an order under this subparagraph 

23 to the Foreign Intelligence Surveillance Court 

24 of Review. 


smartinez on DSKB9S0YB1PROD with BILLS
87 

•HR 4005 IH

1 ‘‘(D) USE OF PROCEDURES.—If the For2 eign Intelligence Surveillance Court approves 

3 procedures under this paragraph, the Govern4 ment shall use the procedures in any acquisition 

5 of communications under this title. 

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

7 in consultation with the Director of National 

8 Intelligence, may submit new or amended proce9 dures to the Foreign Intelligence Surveillance 

10 Court for review under this paragraph. 

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

12 obtains new information relating to the reli13 ability of procedures approved under this para14 graph or the availability of more reliable proce15 dures, the Attorney General shall submit to the 

16 Foreign Intelligence Surveillance Court the in17 formation. 

18 ‘‘(b) LIMITATIONS ON ACCESS TO COMMUNICA19 TIONS.— 

20 ‘‘(1) IN GENERAL.—At such time as the Gov21 ernment can reasonably determine that a commu22 nication acquired under this title (including a com23 munication acquired under subsection (a)(2)) is to 

24 or from a person reasonably believed to be located 

25 in the United States, the communication shall be 


smartinez on DSKB9S0YB1PROD with BILLS
88 

•HR 4005 IH

1 segregated or specifically designated and no person 

2 shall access the communication, except in accordance 

3 with title I or this section. 

4 ‘‘(2) EXCEPTIONS.—In addition to any author5 ity under title I, including the emergency provision 

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

7 paragraph (1) may be accessed and disseminated for 

8 a period of not longer than 7 days if— 

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

10 communication concerns international terrorist 

11 activities directed against the United States, or 

12 activities in preparation therefor; 

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

14 the target reasonably believed to be located out15 side the United States is an agent of a foreign 

16 power and the foreign power is a group engaged 

17 in international terrorism or activities in prepa18 ration therefor; or 

19 ‘‘(iii) there is reason to believe that the ac20 cess is necessary to prevent death or serious 

21 bodily harm; 

22 ‘‘(B) the Attorney General notifies the 

23 Foreign Intelligence Surveillance Court imme24 diately of the access; and 


smartinez on DSKB9S0YB1PROD with BILLS
89 

•HR 4005 IH

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

2 the access is initiated, the Attorney General— 

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

4 under title I; or 

5 ‘‘(ii) submits to the Foreign Intel6 ligence Surveillance Court a document 

7 that— 

8 ‘‘(I) certifies that— 

9 ‘‘(aa) there is reason to be10 lieve that the communication con11 cerns international terrorist ac12 tivities directed against the 

13 United States, or activities in 

14 preparation therefor; 

15 ‘‘(bb) there is probable 

16 cause to believe that the target 

17 reasonably believed to be located 

18 outside the United States is an 

19 agent of a foreign power and the 

20 foreign power is a group engaged 

21 in international terrorism or ac22 tivities in preparation therefor; or 

23 ‘‘(cc) there is reason to be24 lieve that the access is necessary 


smartinez on DSKB9S0YB1PROD with BILLS
90 

•HR 4005 IH

1 to prevent death or serious bodily 

2 harm; and 

3 ‘‘(II) identifies the target of the 

4 collection, the party to the commu5 nication who is in the United States if 

6 known, and the extent to which infor7 mation relating to the communication 

8 has been disseminated. 

9 ‘‘(3) DENIAL OF COURT ORDER.—If an applica10 tion for a court order described in paragraph 

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

12 General shall submit to the Foreign Intelligence Sur13 veillance Court, not later than 7 days after the date 

14 of the denial of the application, the document de15 scribed in paragraph (2)(C)(ii). 

16 ‘‘(4) ADDITIONAL COURT AUTHORITIES.— 

17 ‘‘(A) IN GENERAL.—The Foreign Intel18 ligence Surveillance Court may— 

19 ‘‘(i) limit access to communications 

20 described in paragraph (1) relating to a 

21 particular target if the Court determines 

22 that any certification submitted under 

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

24 target is clearly erroneous; and 


smartinez on DSKB9S0YB1PROD with BILLS
91 

•HR 4005 IH

1 ‘‘(ii) require the Attorney General to 

2 provide the factual basis for a certification 

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

4 the Court determines it would aid the 

5 Court in conducting review under this sub6 section. 

7 ‘‘(B) FISC ACCESS.—The Foreign Intel8 ligence Surveillance Court shall have access to 

9 any communications that have been segregated 

10 or specifically designated under paragraph (1) 

11 and any information the use of which has been 

12 limited under paragraph (5). 

13 ‘‘(5) FAILURE TO NOTIFY.— 

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

15 described in subparagraph (B), access to a com16 munication shall terminate, and no information 

17 obtained or evidence derived from the access 

18 concerning any United States person shall be 

19 received in evidence or otherwise disclosed in 

20 any trial, hearing, or other proceeding in or be21 fore any court, grand jury, department, office, 

22 agency, regulatory body, legislative committee, 

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

24 or political subdivision thereof, and no informa25 tion concerning any United States person acVerDate Nov 24 2008 02:33 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00091 Fmt 6652 Sfmt 6201 E:\BILLS\H4005.IH H4005

smartinez on DSKB9S0YB1PROD with BILLS
92 

•HR 4005 IH

1 quired from the access shall subsequently be 

2 used or disclosed in any manner by Federal of3 ficers or employees without the consent of the 

4 person, except with the approval of the Attor5 ney General if the information indicates a 

6 threat of death or serious bodily harm to any 

7 person, or if a court order is obtained under 

8 title I. 

9 ‘‘(B) CIRCUMSTANCES.—The cir10 cumstances described in this subparagraph are 

11 circumstances in which— 

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

13 the date on which access to a communica14 tion is initiated under paragraph (2), a 

15 court order described in paragraph 

16 (2)(C)(i) has not been sought and the doc17 ument described in paragraph (2)(C)(ii) 

18 has not been submitted; or 

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

20 after an application for a court order de21 scribed in paragraph (2)(C)(i) is denied, 

22 the document described in paragraph 

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

24 with paragraph (3). 


smartinez on DSKB9S0YB1PROD with BILLS
93 

•HR 4005 IH

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

2 communications subject to this subsection may be 

3 disseminated for law enforcement purposes if it is 

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

5 to be committed, if dissemination is made in accord6 ance with section 106(b). 

7 ‘‘(7) PROCEDURES FOR DETERMINATIONS

8 AFTER ACQUISITION.— 

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

10 days after the date of enactment of the JUS11 TICE Act, the Attorney General, in consulta12 tion with the Director of National Intelligence, 

13 shall submit to the Foreign Intelligence Surveil14 lance Court for approval procedures for deter15 mining, where reasonably practicable, whether a 

16 communication acquired under this title is to or 

17 from a person reasonably believed to be in the 

18 United States. 

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

20 Surveillance Court shall approve the procedures 

21 submitted under subparagraph (A) if the proce22 dures are reasonably designed to determine, 

23 where reasonably practicable, whether a com24 munication acquired under this title is a comVerDate Nov 24 2008 02:33 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00093 Fmt 6652 Sfmt 6201 E:\BILLS\H4005.IH H4005

smartinez on DSKB9S0YB1PROD with BILLS
94 

•HR 4005 IH

1 munication to or from a person reasonably be2 lieved to be located in the United States. 

3 ‘‘(C) PROCEDURES DO NOT MEET RE4 QUIREMENTS.—If the Foreign Intelligence Sur5 veillance Court concludes that the procedures 

6 submitted under subparagraph (A) do not meet 

7 the requirements of subparagraph (B), the 

8 Court shall enter an order so stating and pro9 vide a written statement for the record of the 

10 reasons for the determination. The Government 

11 may appeal an order under this subparagraph 

12 to the Foreign Intelligence Surveillance Court 

13 of Review. 

14 ‘‘(D) USE OF PROCEDURES.—If the For15 eign Intelligence Surveillance Court approves 

16 procedures under this paragraph, the Govern17 ment shall use the procedures for any commu18 nication acquired under this title. 

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

20 in consultation with the Director of National 

21 Intelligence, may submit new or amended proce22 dures to the Foreign Intelligence Surveillance 

23 Court for review under this paragraph. 

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

25 obtains new information relating to the reliVerDate Nov 24 2008 02:33 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00094 Fmt 6652 Sfmt 6201 E:\BILLS\H4005.IH H4005

smartinez on DSKB9S0YB1PROD with BILLS
95 

•HR 4005 IH

1 ability of procedures approved under this para2 graph or the availability of more reliable proce3 dures, the Attorney General shall submit to the 

4 Foreign Intelligence Surveillance Court the in5 formation. 

6 ‘‘(c) TITLE I COURT ORDER.—If the Government ob7 tains a court order under title I relating to a target of 

8 an acquisition under this title, the Government may access 

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

10 any applicable minimization requirements, any commu11 nications of that target that have been acquired and seg12 regated or specifically designated under subsection (b)(1). 

13 ‘‘(d) INSPECTOR GENERAL AUDIT.— 

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

15 Inspector General of the Department of Defense and 

16 the Inspector General of the Department of Justice 

17 shall complete an audit of the implementation of and 

18 compliance with this section. For purposes of an 

19 audit under this paragraph, the Inspectors General 

20 shall have access to any communications that have 

21 been segregated or specifically designated under sub22 section (b)(1) and any information the use of which 

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

24 under this paragraph shall include an accounting of 


smartinez on DSKB9S0YB1PROD with BILLS
96 

•HR 4005 IH

1 any segregated or specifically designated commu2 nications that have been disseminated. 

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

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

5 the Inspectors General shall jointly submit to the 

6 Permanent Select Committee on Intelligence and the 

7 Committee on the Judiciary of the House of Rep8 resentatives and the Select Committee on Intel9 ligence and the Committee on the Judiciary of the 

10 Senate a report containing the results of the audit. 

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

12 Director of National Intelligence shall ensure that 

13 the process for the investigation and adjudication of 

14 an application by an Inspector General or any ap15 propriate staff of an Inspector General for a security 

16 clearance necessary for the conduct of the audits 

17 under this subsection is conducted as expeditiously 

18 as possible. 

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

20 apply to any communication acquired under this title on 

21 or after the earlier of— 

22 ‘‘(1) the date that the Foreign Intelligence Sur23 veillance Court approves the procedures described in 

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

25 subsection (b)(7); and 


smartinez on DSKB9S0YB1PROD with BILLS
97 

•HR 4005 IH

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

2 JUSTICE Act.’’. 

3 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

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

6 seq.) is amended by inserting after the item relating to 

7 section 708 the following: 

‘‘Sec. 709. Additional safeguards for communications of persons in the United 

States.’’. 

8 SEC. 308. CLARIFICATION OF COMPUTER TRESPASS AU9 THORITY. 

10 (a) DEFINITIONS.—Section 2510(21)(B) of title 18, 

11 United States Code, is amended— 

12 (1) by inserting ‘‘or other’’ after ‘‘contractual’’; 

13 and 

14 (2) by striking ‘‘for access’’ and inserting ‘‘per15 mitting access’’. 

16 (b) INTERCEPTION AND DISCLOSURE.—Section 

17 2511(2)(i) of title 18, United States Code, is amended— 

18 (1) in subclause (I), by striking ‘‘protected com19 puter authorizes’’ and inserting the following: ‘‘pro20 tected computer— 

21 ‘‘(aa) is attempting to respond to 

22 communications activity that threat23 ens the integrity or operation of the 

24 protected computer and requests asVerDate Nov 24 2008 02:33 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00097 Fmt 6652 Sfmt 6201 E:\BILLS\H4005.IH H4005

smartinez on DSKB9S0YB1PROD with BILLS
98 

•HR 4005 IH

1 sistance to protect the rights and 

2 property of the owner or operator; 

3 and 

4 ‘‘(bb) authorizes’’; and 

5 (2) in clause (IV), by striking ‘‘interception 

6 does not’’ and inserting the following: ‘‘intercep7 tion— 

8 ‘‘(aa) ceases as soon as the com9 munications sought are obtained or 

10 after 96 hours, whichever is earlier 

11 (unless an order authorizing or ap12 proving the interception is obtained 

13 under this chapter); and 

14 ‘‘(bb) does not’’. 

15 (c) REPORT.—Not later than 60 days after the date 

16 of enactment of this Act, and annually thereafter, the At17 torney General shall submit a report to the Committee on 

18 the Judiciary of the Senate and the Committee on the Ju19 diciary of the House of Representatives on the use of sec20 tion 2511 of title 18, United States Code, relating to com21 puter trespass provisions, as amended by subsection (b), 

22 during the year before the year of that report. 


smartinez on DSKB9S0YB1PROD with BILLS
99 

•HR 4005 IH

1 TITLE IV—IMPROVEMENTS TO 

2 FURTHER CONGRESSIONAL 

3 AND JUDICIAL OVERSIGHT 

4 SEC. 401. PUBLIC REPORTING ON THE FOREIGN INTEL5 LIGENCE SURVEILLANCE ACT. 

6 Section 601 of the Foreign Intelligence Surveillance 

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

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

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

10 (2) by inserting after subsection (a) the fol11 lowing: 

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

13 make publicly available the portion of each report under 

14 subsection (a) relating to paragraphs (1) and (2) of sub15 section (a).’’; and 

16 (3) in subsection (e), as so redesignated, by 

17 striking ‘‘subsection (c)’’ and inserting ‘‘subsection 

18 (d)’’. 

19 SEC. 402. USE OF FOREIGN INTELLIGENCE SURVEILLANCE 

20 ACT MATERIALS. 

21 (a) ELECTRONIC SURVEILLANCE.—Section 106(f) of 

22 the Foreign Intelligence Surveillance Act of 1978 (50 

23 U.S.C. 1806(f)) is amended by striking the last sentence 

24 and inserting ‘‘In making this determination, unless the 

25 court finds that disclosure would not assist in determining 


smartinez on DSKB9S0YB1PROD with BILLS
100 

•HR 4005 IH

1 any legal or factual issue pertinent to the case, the court 

2 may disclose to the aggrieved person, the counsel for the 

3 aggrieved person, or both, under the procedures and 

4 standards provided in the Classified Information Proce5 dures Act (18 U.S.C. App.) or other appropriate security 

6 procedures and protective orders, portions of the applica7 tion, order, or other related materials, or evidence or infor8 mation obtained or derived from the order.’’. 

9 (b) PHYSICAL SEARCHES.—Section 305(g) of the 

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

11 1825(g)) is amended by striking the last sentence and in12 serting ‘‘In making this determination, unless the court 

13 finds that disclosure would not assist in determining any 

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

15 disclose to the aggrieved person, the counsel for the ag16 grieved person, or both, under the procedures and stand17 ards provided in the Classified Information Procedures 

18 Act (18 U.S.C. App.) or other appropriate security proce19 dures and protective orders, portions of the application, 

20 order, or other related materials, or evidence or informa21 tion obtained or derived from the order.’’. 

22 (c) PEN REGISTERS AND TRAP AND TRACE DE23 VICES.—Section 405(f) of the Foreign Intelligence Sur24 veillance Act of 1978 (50 U.S.C. 1845(f)) is amended by 

25 striking paragraph (2) and inserting the following: 


smartinez on DSKB9S0YB1PROD with BILLS
101 

•HR 4005 IH

1 ‘‘(2) In making a determination under paragraph (1), 

2 unless the court finds that disclosure would not assist in 

3 determining any legal or factual issue pertinent to the 

4 case, the court may disclose to the aggrieved person, the 

5 counsel for the aggrieved person, or both, under the proce6 dures and standards provided in the Classified Informa7 tion Procedures Act (18 U.S.C. App.) or other appropriate 

8 security procedures and protective orders, portions of the 

9 application, order, or other related materials, or evidence 

10 or information obtained or derived from the order.’’. 

11 SEC. 403. CHALLENGES TO NATIONWIDE ORDERS FOR 

12 ELECTRONIC EVIDENCE. 

13 Section 2703 of title 18, United States Code, is 

14 amended by adding at the end the following: 

15 ‘‘(h) JUDICIAL REVIEW.—A provider of electronic 

16 communication service or remote computing service may 

17 challenge a subpoena, order, or warrant requiring disclo18 sure of customer communications or records under this 

19 section in— 

20 ‘‘(1) the United States district court for the 

21 district in which the order was issued; or 

22 ‘‘(2) the United States district court for the 

23 district in which the order was served.’’. 


smartinez on DSKB9S0YB1PROD with BILLS
102 

•HR 4005 IH

1 TITLE V—IMPROVEMENTS TO 

2 FURTHER EFFECTIVE, FO3 CUSED INVESTIGATIONS 

4 SEC. 501. MODIFICATION OF DEFINITION OF DOMESTIC 

5 TERRORISM. 

6 Section 2331(5) of title 18, United States Code, is 

7 amended— 

8 (1) by striking subparagraphs (A) and (B) and 

9 inserting the following: 

10 ‘‘(A) involve acts dangerous to human life 

11 that constitute a Federal crime of terrorism (as 

12 that term is defined in section 2332b(g)(5)); 

13 and’’; and 

14 (2) by redesignating subparagraph (C) as sub15 paragraph (B). 

16 SEC. 502. CLARIFICATION OF INTENT REQUIREMENT. 

17 Section 2339B(a)(1) of title 18, United States Code, 

18 is amended by inserting ‘‘knowing or intending that the 

19 material support or resources will be used in carrying out 

20 terrorist activity (as defined in section 212(a)(3)(B)(iii) 

21 of the Immigration and Nationality Act (8 U.S.C. 

22 1182(a)(3)(B)(iii)),’’ before ‘‘shall be fined’’. 

Æ 


smartinez on DSKB9S0YB1PROD with BILLS