I 
108TH CONGRESS 
2D SESSION 
H. R. 4591 
To restore civil liberties under the First Amendment, the Immigration and 
Nationality Act, and the Foreign Intelligence Surveillance Act. 
IN THE HOUSE OF REPRESENTATIVES 
JUNE 16, 2004 
Mr. BERMAN (for himself and Mr. DELAHUNT) introduced the following bill; 
which was referred to the Committee on the Judiciary, and in addition 
to the Select Committee on Intelligence (Permanent Select), for a period 
to be subsequently determined by the Speaker, in each case for consider-
ation of such provisions as fall within the jurisdiction of the committee 
concerned 
A BILL 
To restore civil liberties under the First Amendment, the 
Immigration and Nationality Act, and the Foreign Intel-
ligence Surveillance Act. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Civil Liberties Restora-
tion Act of 2004’’. 
SEC. 2. FINDINGS. 
Congress finds the following:
(1) Fighting terrorism is a priority for our Na-
tion. 
(2) As Federal, State, and local law enforce-
ment work tirelessly every day to prevent another 
terrorist attack, our Nation must continue to work 
to ensure that law enforcement have the legal tools 
and resources to do their job. 
(3) At the same time, steps that are taken to 
protect the United States from terrorism should not 
undermine constitutional rights and protections. 
(4) Some of the steps taken by the Administra-
tion since September 11, 2001, however, have under-
mined constitutional rights and protections. 
(5) Our nation must strive for both freedom 
and security. 
(6) This Act seeks to restore essential rights 
and protections without compromising our Nation’s 
safety. 
TITLE I—RESTORING FIRST 
AMENDMENT RIGHTS 
SEC. 101. LIMITATION ON CLOSED IMMIGRATION HEAR-
INGS. 
(a) IN GENERAL.—Section 240 of the Immigration 
and Nationality Act (8 U.S.C. 1229a) is amended—
(1) by redesignating subsection (e) as sub-
section (f); and 
(2) by inserting after subsection (d) the fol-
lowing new subsection: 
‘‘(e) STANDARDS
FOR CLOSING REMOVAL HEAR-
INGS.— 
‘‘(1) IN GENERAL.—Subject to paragraph (2), a 
removal proceeding held pursuant to this section 
shall be open to the public. 
‘‘(2) EXCEPTIONS.—Portions of a removal pro-
ceeding held pursuant to this section may be closed 
to the public by an immigration judge on a case by 
case basis, when necessary— 
‘‘(A) to preserve the confidentiality of ap-
plications for asylum, withholding of removal, 
relief under the Convention Against Torture 
and Other Cruel, Inhuman or Degrading Treat-
ment or Punishment, the Violence Against 
Women Act of 1994 (Public Law 103–322; 108 
Stat. 1902), or the Victims of Trafficking and 
Violence Prevention Act of 2000 (Public Law 
106–386; 114 Stat. 1464), or other applications 
for relief involving confidential personal infor-
mation or where portions of the removal hear-
ing involve minors or issues relating to domestic 
violence, all with the consent of the alien; 
‘‘(B) to prevent the disclosure of classified 
information that threatens the national security 
of the United States and the safety of the 
American people; or 
‘‘(C) to prevent the disclosure of the iden-
tity of a confidential informant. 
‘‘(3) COMPELLING GOVERNMENT INTEREST.— 
In order for portions of removal proceedings to be 
closed to the public in accordance with this sub-
section, the government must show that such closing 
of the proceedings is necessitated by a compelling 
governmental interest and is narrowly tailored to 
serve that interest.’’. 
(b) TECHNICAL AND CONFORMING AMENDMENTS.— 
Section 240(b) of the Immigration and Nationality Act (8 
U.S.C. 1229a(b)) is amended— 
(1) in paragraph (5)(C)(i), by striking ‘‘sub-
section (e)(1)’’ and inserting ‘‘subsection (f)(1)’’; 
and 
(2) in paragraph (7), by striking ‘‘subsection 
(e)(1)’’ and inserting ‘‘subsection (f)(1)’’.
TITLE II—PROVIDING DUE 
PROCESS FOR INDIVIDUALS 
SEC. 201. TIMELY SERVICE OF NOTICE. 
(a) IN GENERAL.—Section 236 of the Immigration 
and Nationality Act (8 U.S.C. 1226) is amended by add-
ing at the end the following: 
‘‘(f) NOTICE OF CHARGES.—The Secretary of Home-
land Security shall serve a notice to appear on every alien 
arrested or detained under this Act, except those certified 
under section 236A(a)(3), within 48 hours of the arrest 
or detention of such alien. Any alien, except those certified 
under section 236A(a)(3), held for more than 48 hours 
shall be brought before an immigration judge within 72 
hours of the arrest or detention of such alien. The Sec-
retary of Homeland Security shall— 
‘‘(1) document when a notice to appear is 
served on a detainee in order to determine compli-
ance by the Department of Homeland Security with 
the 48-hour notice requirement; and 
‘‘(2) submit to the Committees on the Judiciary 
of the Senate and the House of Representatives an 
annual report concerning the Department of Home-
land Security’s compliance with such notice require-
ment.’’.
(b) APPLICABILITY
OF OTHER LAW.—Nothing in 
section 236(f) of the Immigration and Nationality Act, as 
added by subsection (a), shall be construed to repeal sec-
tion 236A of such Act (8 U.S.C. 1226a). 
SEC. 202. INDIVIDUALIZED BOND DETERMINATIONS. 
(a) IN GENERAL.—Section 236(a) of the Immigra-
tion and Nationality Act (8 U.S.C. 1226(a)) is amended— 
(1) by striking ‘‘On a warrant’’ and inserting 
the following: 
‘‘(1) IN GENERAL.—On a warrant’’; 
(2) by striking ‘‘Except as provided’’ and all 
that follows through the end and inserting the fol-
lowing: ‘‘This subsection shall apply to all aliens de-
tained pending a decision on their removal or admis-
sion, regardless of whether or not they have been ad-
mitted to the United States, including any alien 
found to have a credible fear of persecution under 
section 235(b)(1)(B) or any alien admitted or seek-
ing admission under the visa waiver program pursu-
ant to section 217. Except as provided in subsection 
(c) and pending such decision, the Secretary of 
Homeland Security shall— 
‘‘(A) make an individualized determination 
as to whether the alien should be released pend-
ing administrative and judicial review, to in-
clude a determination of whether the alien 
poses a danger to the safety of other persons or 
property and is likely to appear for future 
scheduled proceedings; and 
‘‘(B) grant the alien release pending ad-
ministrative and judicial review under reason-
able bond or other conditions, including condi-
tional parole, that will reasonably assure the 
presence of the alien at all future proceedings, 
unless the Secretary of Homeland Security de-
termines under subparagraph (A) that the alien 
poses a danger to the safety of other persons or 
property or is unlikely to appear for future pro-
ceedings. 
‘‘(2) INDIVIDUALIZED
DETERMINATIONS.—An 
individualized determination made by the Secretary 
of Homeland Security pursuant to paragraph (1)(A) 
shall be reviewable at a hearing held before an immi-
gration judge pursuant to section 240. An immigra-
tion judge who reviews an initial bond determination 
by the Secretary of Homeland Security, or who 
makes a bond determination prior to a decision by 
the Secretary of Homeland Security, shall apply the 
same standards set forth in subparagraphs (A) and 
(B) of paragraph (1).’’.
(b) REVOCATION
OF BOND
OR PAROLE.—Section 
236(b) of the Immigration and Nationality Act (8 U.S.C. 
1226(b)) is amended by striking ‘‘The Attorney General’’ 
and all that follows through the period and inserting the 
following: ‘‘The bond or parole determination made pursu-
ant to subsection (a)(1)(B) may be revoked or modified 
only by an immigration judge in proceedings held pursu-
ant to section 240, and only if the party seeking to revoke 
or modify the bond or parole determination can establish 
a change in circumstances. The administrative decision 
finding the alien removable does not, in and of itself, con-
stitute a change in circumstances. At such a hearing, if 
changed circumstances are established, the immigration 
judge shall make a new individualized determination in the 
manner described in subsection (a).’’. 
(c) TECHNICAL AND CONFORMING AMENDMENTS.— 
Section 236 of the Immigration and Nationality Act (8 
U.S.C. 1226) is amended— 
(1) by striking ‘‘Attorney General’’ each place 
that term appears and inserting ‘‘Secretary of 
Homeland Security’’; and 
(2) in subsection (e), by striking ‘‘Attorney 
General’s’’ and inserting ‘‘Secretary of Homeland 
Security’s’’.
SEC. 203. LIMITATION ON STAY OF A BOND. 
Section 236 of the Immigration and Nationality Act 
(8 U.S.C. 1226), as amended by section 201, is further 
amended by adding at the end the following: 
‘‘(g) STAY OF A BOND DETERMINATION.—An order 
issued by an immigration judge to release an alien may 
be stayed by the Board of Immigration Review, for not 
more than 30 days, only if the Government dem-
onstrates— 
‘‘(1) the likelihood of success on the merits; 
‘‘(2) irreparable harm to the Government if a 
stay is not granted; 
‘‘(3) that the potential harm to the Government 
outweighs potential harm to alien; and 
‘‘(4) that the grant of a stay is in the interest 
of the public.’’. 
SEC. 204. IMMIGRATION REVIEW COMMISSION. 
(a) ESTABLISHMENT OF COMMISSION.— 
(1) IN GENERAL.—There is established within 
the Department of Justice an independent regu-
latory agency to be known as the Immigration Re-
view Commission (referred to in this section as the 
‘‘Commission’’). The Executive Office of Immigra-
tion Review is hereby abolished and replaced with 
such Commission.
(2) TRANSFER OF AUTHORITY.—The Commis-
sion shall perform all administrative, appellate, and 
adjudicatory functions that were, prior to the date of 
enactment of this Act, the functions of the Executive 
Office of Immigration Review or were performed by 
any officer or employee of the Executive Office of 
Immigration Review in the capacity of such officer 
or employee. Such functions shall not include the 
policy-making, policy-implementation, investigatory, 
or prosecutorial functions of the Department of 
Homeland Security. 
(3) ORGANIZATION.—The Commission shall 
consist of: 
(A) The Office of the Director. 
(B) The Board of Immigration Review. 
(C) The Office of the Chief Immigration 
Judge. 
(D) The Office of the Chief Administrative 
Hearing Officer. 
(b) OFFICE OF THE DIRECTOR.— 
(1) APPOINTMENT.—There shall be as the head 
of the Commission, a Director who shall be ap-
pointed by the President with the advice and consent 
of the Senate.
(2) TRANSFER OF OFFICES.—The following of-
ficers shall be transferred from the Executive Office 
for Immigration Review to the Office of the Director 
for the Commission: 
(A) Deputy Director. 
(B) General Counsel. 
(C) Pro Bono Coordinator. 
(D) Public Affairs. 
(E) Assistant Director of Management 
Programs. 
(F) Equal Employment Opportunity. 
(3) RESPONSIBILITIES.— 
(A) The Director shall oversee the admin-
istration of the Commission, and the creation of 
rules and regulations affecting the administra-
tion of the courts. 
(B) The Director shall appoint a Deputy 
Director to assist with the duties of the Direc-
tor and shall have the power to appoint such 
administrative assistants, attorneys, clerks, and 
other personnel as may be needed. 
(c) BOARD OF IMMIGRATION REVIEW.— 
(1) IN GENERAL.—The Board of Immigration 
Review (referred to in this section as the ‘‘Board’’)
shall perform the appellate functions of the Commis-
sion. 
(2) APPOINTMENT.—The Board shall be com-
posed of a Chairperson and not less than 14 other 
immigration appeals judges, appointed by the Presi-
dent, in consultation with the Director. The term of 
office of each member of the Board shall be 6 years. 
(3) CURRENT MEMBERS.—Each individual who 
is serving as a member of the Board on the date of 
enactment of this Act shall be appointed to the 
Board utilizing a system of staggered terms of ap-
pointment based on seniority. 
(4) MEMBERS.—The Chairperson and each 
other member of the Board shall be an attorney in 
good standing of a bar of a State or the District of 
Columbia and shall have at least 7 years of profes-
sional, legal expertise in immigration and nationality 
law. 
(5) CHAIRPERSON
DUTIES.—The Chairperson 
shall— 
(A) be responsible, on behalf of the Board, 
for the administrative operations of the Board 
and shall have the power to appoint such ad-
ministrative assistants, attorneys, clerks, and
other personnel as may be needed for that pur-
pose; 
(B) direct, supervise, and establish internal 
operating procedures and policies of the Board; 
and 
(C) designate a member of the Board to 
act as Chairperson in the Chairperson’s absence 
or unavailability. 
(6) BOARD MEMBERS DUTIES.—In deciding the 
cases before the Board, the Board shall exercise its 
independent judgment and discretion and may take 
any action, consistent with its authorities under this 
section and regulations established in accordance 
with this section, that is appropriate and necessary 
for the disposition of such cases. 
(7) JURISDICTION.—The Board shall have— 
(A) such jurisdiction as was, prior to the 
date of enactment of this Act, provided by stat-
ute or regulation to the Board of Immigration 
Appeals; 
(B) de novo review of any decision by an 
immigration judge, and any final order of re-
moval; and 
(C) retention of jurisdiction over any case 
of an alien removed by the United States if the
alien’s case was pending for consideration be-
fore the Board prior to removal of the alien. 
(8) ACTING IN PANELS.— 
(A) IN GENERAL.—All cases shall be sub-
ject to review by a 3 member panel. The Chair-
person shall divide the Board into 3 member 
panels and designate a presiding member of 
each panel such that— 
(i) a majority of the number of Board 
members authorized to constitute a panel 
shall constitute a quorum for such panel; 
and 
(ii) each panel may exercise the ap-
propriate authority of the Board that is 
necessary for the adjudication of cases be-
fore it. 
(B) FINAL DECISION.—A final decision of 
a panel shall be considered to be a final deci-
sion of the Board. 
(9) EN BANC PROCESS.— 
(A) IN GENERAL.—The Board may on its 
own motion, by a majority vote of the Board 
members, or by direction of the Chairperson, 
consider any case as the full Board en banc, or 
reconsider as the full Board en banc any case
that has been considered or decided by a 3- 
member panel or by a limited en banc panel. 
(B) QUORUM.—A majority of the Board 
members shall constitute a quorum of the 
Board sitting en banc. 
(10) DECISIONS OF THE BOARD.— 
(A) IN
GENERAL.—The decisions of the 
Board shall constitute final agency action. The 
precedent decisions of the Board shall be bind-
ing on the Department of Homeland Security 
and the immigration judges. 
(B) AFFIRMANCE
WITHOUT
OPINION.— 
Upon individualized review of a case, the Board 
may affirm the decision of an immigration 
judge without opinion only if the decision of the 
immigration judge resolved all issues in the 
case. An affirmance without opinion signifies 
the Board’s adoption of the immigration judge’s 
findings and conclusion in total. 
(C) NOTICE OF APPEAL.—The decision by 
the Board shall include notice to the alien of 
the alien’s right to file a petition for review in 
the court of appeals within 30 days of the date 
of the decision. 
(d) OFFICE OF THE CHIEF IMMIGRATION JUDGE.—
(1) ESTABLISHMENT OF OFFICE.—There is es-
tablished within the Commission an Office of the 
Chief Immigration Judge to oversee all the immigra-
tion courts and their proceedings throughout the 
United States. The head of the office shall be the 
Chief Immigration Judge who shall be appointed by 
the Director. 
(2) DUTIES
OF
THE
CHIEF
IMMIGRATION 
JUDGE.—The Chief Immigration Judge shall be re-
sponsible for the general supervision, direction, and 
procurement of resources and facilities, and for the 
coordination of the schedules of immigration judges 
to enable the judges to conduct the various pro-
grams assigned to them. The Chief Immigration 
Judge may be assisted by a Deputy Chief Immigra-
tion Judge and Assistant Chief Immigration Judge. 
(3) APPOINTMENT OF IMMIGRATION JUDGES.— 
(A) IN
GENERAL.—Immigration judges 
shall be appointed by the Director, in consulta-
tion with the Chief Immigration Judge and the 
Chair of the Board of Immigration Review. The 
term of each immigration judge shall be 12 
years. 
(B) QUALIFICATIONS.—Each immigration 
judge, including the Chief Immigration Judge,
shall be an attorney in good standing of a bar 
of a State or the District of Columbia and shall 
have at least 7 years of professional, legal ex-
pertise in immigration and nationality law. 
(C) CURRENT MEMBERS.—Each individual 
who is serving as an immigration judge on the 
date of enactment of this Act shall be appointed 
as an immigration judge utilizing a system of 
staggered terms of appointment based on se-
niority. 
(4) DUTIES OF IMMIGRATION JUDGES.—In de-
ciding the cases before them, immigration judges 
shall exercise their independent judgment and dis-
cretion and may take any action, consistent with 
their authorities under this section and regulations 
established in accordance with this section, that is 
appropriate and necessary for the disposition of such 
cases. 
(5) JURISDICTION AND AUTHORITY OF IMMI-
GRATION
COURTS.—The Immigration Courts shall 
have such jurisdiction as was, prior to the date of 
enactment of this Act, provided by statute or regula-
tion to the Immigration Courts within the Executive 
Office for Immigration Review.
(6) CONTEMPT AUTHORITY.—The contempt au-
thority provided to immigration judges under section 
240(b)(1) of the Immigration and Nationality Act (8 
U.S.C. 1229a(b)(1)) shall— 
(A) be implemented by regulation not later 
than 120 days after the date of enactment of 
this Act; 
(B) provide that any contempt sanctions, 
including any civil money penalty, shall be ap-
plicable to all parties appearing before the im-
migration judge and shall be imposed by a sin-
gle process applicable to all parties. 
(e) OFFICE OF THE CHIEF ADMINISTRATIVE HEAR-
ING OFFICER.— 
(1) IN GENERAL.—The Office of the Chief Ad-
ministrative Hearing Officer shall be headed by a 
Chief Administrative Hearing Officer who shall be 
appointed by the Director. 
(2) DUTIES AND RESPONSIBILITIES.—The du-
ties and responsibilities of the current Office of the 
Chief Administrative Hearing Officer shall be trans-
ferred to the Commission. 
(f) REMOVAL AND REVIEW OF JUDGES.—
(1) IN
GENERAL.—Immigration judges and 
members of the Board of Immigration Review may 
be removed from office only for good cause— 
(A) by the Director, in consultation with 
the Chair of the Board, in the case of the re-
moval of a member of the Board; or 
(B) by the Director, in consultation with 
the Chief Immigration Judge, in the case of the 
removal of an immigration judge. 
(2) INDEPENDENT
JUDGMENT.—No immigra-
tion judge or member of the Board shall be removed 
or otherwise subject to disciplinary or adverse action 
for their exercise of independent judgment and dis-
cretion as prescribed by subsections (c)(6) and 
(d)(4). 
(g) REGULATIONS.—Not later than 180 days after 
the date of enactment of this Act, the Director shall issue 
regulations to implement this section. 
TITLE III—EFFECTIVE LAW 
ENFORCEMENT 
SEC. 301. TERMINATION OF THE NSEERS PROGRAM; ESTAB-
LISHMENT OF REASONABLE PENALTIES FOR 
FAILURE TO REGISTER. 
(a) TERMINATION OF NSEERS.—
(1) IN
GENERAL.—The National Security 
Entry-Exit Registration System (NSEERS) pro-
gram administered by the Secretary of Homeland 
Security is hereby terminated. 
(2) INTEGRATED ENTRY AND EXIT DATA SYS-
TEM.—Nothing in this section shall amend the Inte-
grated Entry and Exit Data System established in 
accordance with section 110 of the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 
1996 (8 U.S.C. 1365a). 
(3) ADMINISTRATIVE
CLOSURE
OF
REMOVAL 
PROCEEDINGS.— 
(A) IN GENERAL.—All removal proceedings 
initiated against any alien as a result of the 
NSEERS program shall be administratively 
closed. This paragraph shall apply to all aliens 
who were— 
(i) placed in removal proceedings sole-
ly for failure to comply with the require-
ments of the NSEERS program; or 
(ii) placed in removal proceedings 
while complying with the requirements of 
the NSEERS program and— 
(I) had a pending application be-
fore the Department of Labor or the
Department of Homeland Security for 
which there is a visa available; 
(II) did not have a pending appli-
cation before the Department of 
Labor or the Department of Home-
land Security for which there is a visa 
available but were eligible for an im-
migration benefit; or 
(III) were eligible to apply for 
other forms of relief from removal. 
(B) EXCEPTIONS.—This paragraph shall 
not apply in cases in which the aliens are re-
movable under— 
(i) section 212(a)(3) of the Immigra-
tion and Nationality Act (8 U.S.C. 
1182(a)(3)); or 
(ii) paragraph (2) or (4) of section 
237(a) of that Act (8 U.S.C. 1227(a)(2) or 
(4)). 
(4) MOTIONS
TO
REOPEN.—Notwithstanding 
any limitations imposed by law on motions to reopen 
removal proceedings, any alien who received a final 
order of removal as a result of the NSEERS pro-
gram shall be eligible to file a motion to reopen the
removal proceeding and apply for any relief from re-
moval that such alien may be eligible to receive. 
SEC. 302. EXERCISE OF PROSECUTORIAL DISCRETION. 
(a) SENSE
OF CONGRESS REGARDING PROSECU-
TORIAL DISCRETION.— 
(1) FINDINGS.—Congress finds the following: 
(A) Exercising prosecutorial discretion is 
not an invitation to violate or ignore the law, 
rather it is a means by which the resources of 
the Secretary of Homeland Security may be 
used to best accomplish the mission of the De-
partment of Homeland Security in admin-
istering and enforcing the immigration laws of 
the United States. 
(B) Although a favorable exercise of dis-
cretion by any office within the Department of 
Homeland Security should be respected by 
other offices of such Department, unless the 
facts and circumstances in a specific case have 
changed, the exercise of prosecutorial discretion 
does not grant lawful status under the immigra-
tion laws, and there is no legally enforceable 
right to the exercise of prosecutorial discretion. 
(2) SENSE OF CONGRESS.—It is the sense of 
Congress that the exercise of prosecutorial discretion
does not lessen the commitment of the Secretary of 
Homeland Security to enforce the immigration laws 
to the best of the Secretary’s ability. 
(b) PROSECUTORIAL DISCRETION.—The Secretary of 
Homeland Security shall exercise prosecutorial discretion 
in deciding whether to exercise its enforcement powers 
against an alien. This discretion includes— 
(1) focusing investigative resources on par-
ticular offenses or conduct; 
(2) deciding whom to stop, question, and arrest; 
(3) deciding whether to detain certain aliens 
who are in custody; 
(4) settling or dismissing a removal proceeding; 
(5) granting deferred action or staying a final 
removal order; 
(6) agreeing to voluntary departure, permitting 
withdrawal of an application for admission, or tak-
ing other action in lieu of removing an alien; 
(7) pursuing an appeal; or 
(8) executing a removal order. 
(c) FACTORS
FOR CONSIDERATION.—The factors 
that shall be taken into account in deciding whether to 
exercise prosecutorial discretion favorably toward an alien 
include— 
(1) the immigration status of the alien;
(2) the length of residence in the United States 
of the alien; 
(3) the criminal history of the alien; 
(4) humanitarian concerns; 
(5) the immigration history of the alien; 
(6) the likelihood of ultimately removing the 
alien; 
(7) the likelihood of achieving the enforcement 
goal by other means; 
(8) whether the alien is eligible or is likely to 
become eligible for other relief; 
(9) the effect of such action on the future ad-
missibility of the alien; 
(10) current or past cooperation by the alien 
with law enforcement authorities; 
(11) honorable service by the alien in the 
United States military; 
(12) community attention; and 
(13) resources available to the Department of 
Homeland Security. 
SEC. 303. CIVIL PENALTIES FOR TECHNICAL VIOLATIONS 
OF REGISTRATION REQUIREMENTS. 
(a) REGISTRATION PENALTIES.—Section 266(a) of 
the Immigration and Nationality Act (8 U.S.C. 1306(a)) 
is amended by striking ‘‘Any alien’’ and all that follows
through the period and inserting the following: ‘‘(1) A civil 
penalty shall be imposed, in accordance with paragraph 
(2), on any alien who is required to apply for registration 
and be fingerprinted under section 262 or 263, who will-
fully fails or refuses to make such application or be 
fingerprinted, and any parent or legal guardian required 
to apply for the registration of any alien who willfully fails 
or refuses to file application for the registration of such 
alien as required by such section. 
‘‘(2) The Secretary of Homeland Security may 
levy a civil monetary penalty of up to— 
‘‘(A) $100 for a first violation of section 
262 or 263; 
‘‘(B) $500 for a second violation of section 
262 or 263; and 
‘‘(C) $1,000 for each subsequent violation 
of section 262 or 263 after the second viola-
tion.’’. 
(b) OTHER PENALTIES.—Section 266(b) of the Im-
migration and Nationality Act (8 U.S.C. 1306(b)) is 
amended to read as follows: 
‘‘(b)(1) A penalty shall be imposed, in accordance 
with paragraph (2), on any alien or the parent or legal 
guardian in the United States of any alien who fails to 
submit written notice to the Secretary of Homeland Secu-
rity as required by section 265. No penalty shall be im-
posed with respect to a failure to submit such notice if 
the alien establishes that such failure was reasonably ex-
cusable or was not willful. 
‘‘(2) Except as provided in paragraphs (4) and (5), 
the Secretary of Homeland Security shall levy a civil mon-
etary penalty of— 
‘‘(A) up to $100 against an alien who fails 
to submit written notice in compliance with sec-
tion 265; 
‘‘(B) up to $500 against an alien for a sec-
ond violation of section 265; and 
‘‘(C) up to $1,000 for each subsequent vio-
lation of section 265 after the second violation. 
‘‘(3) Notwithstanding any other provision of this Act, 
no change of immigration status shall result from failure 
to submit written notice as required by section 265. 
‘‘(4) During the transition period, a failure to comply 
with section 265 shall not result in a penalty or a change 
in immigration status. At the conclusion of the transition 
period, the Secretary of Homeland Security shall collect 
and maintain statistics concerning all enforcement actions 
related to this subsection. 
‘‘(5) The penalties imposed under this subsection 
shall not apply to an alien who previously failed to submit
a change of address prior to the date of enactment of the 
Civil Liberties Restoration Act of 2004 or the end of the 
transition period if the alien submits a change of address 
within 6 months after the end of the transition period. 
A penalty shall be imposed, in accordance with paragraph 
(2), on any alien who fails to submit a change of address 
within the 6-month period following the transition period. 
‘‘(6) In this subsection, the term ‘transition period’ 
means the period beginning on the date of enactment of 
the Civil Liberties Restoration Act of 2004 and ending 1 
year after the date of enactment of such Act, at which 
time the Secretary of Homeland Security shall implement 
a system to record and preserve on a timely basis address-
es provided under section 265.’’. 
SEC. 304. NCIC COMPLIANCE WITH THE PRIVACY ACT. 
Data entered into the National Crime Information 
Center database must meet the accuracy requirements of 
section 552a of title 5, United States Code (commonly re-
ferred to as the ‘‘Privacy Act’’).
TITLE 
IV—PROTECTING 
PRI-
VACY AND ENSURING DUE 
PROCESS FOR TARGETS OF 
SURVEILLANCE 
SEC. 401. MODIFICATION OF AUTHORITIES ON REVIEW OF 
MOTIONS TO DISCOVER MATERIALS UNDER 
FOREIGN INTELLIGENCE SURVEILLANCE ACT 
OF 1978. 
(a) ELECTRONIC SURVEILLANCE.—Section 106(f) of 
the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1806(f)) is amended— 
(1) in the first sentence, by striking ‘‘shall,’’ 
and inserting ‘‘may,’’; and 
(2) by striking the last sentence and inserting 
the following new sentence: ‘‘In making this deter-
mination, the court shall disclose, if otherwise dis-
coverable, to the aggrieved person, the counsel of the 
aggrieved person, or both, under the procedures and 
standards provided in the Classified Information 
Procedures Act (18 U.S.C. App.), portions of the ap-
plication, order, or other materials relating to the 
surveillance unless the court finds that such disclo-
sure would not assist in determining any legal or 
factual issue pertinent to the case.’’.
(b) PHYSICAL SEARCHES.—Section 305(g) of the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
1825(g)) is amended— 
(1) in the first sentence, by striking ‘‘shall,’’ 
and inserting ‘‘may,’’; and 
(2) by striking the last sentence and inserting 
the following new sentence: ‘‘In making this deter-
mination, the court shall disclose, if otherwise dis-
coverable, to the aggrieved person, the counsel of the 
aggrieved person, or both, under the procedures and 
standards provided in the Classified Information 
Procedures Act (18 U.S.C. App.), portions of the ap-
plication, order, or other materials relating to the 
physical search, or may require the Attorney General 
to provide to the aggrieved person, the counsel of the 
aggrieved person, or both a summary of such mate-
rials unless the court finds that such disclosure 
would not assist in determining any legal or factual 
issue pertinent to the case.’’. 
(c) PEN REGISTERS AND TRAP AND TRACE DE-
VICES.—Section 405(f) of the Foreign Intelligence Sur-
veillance Act of 1978 (50 U.S.C. 1845(f)) is amended by 
striking paragraph (2) and inserting the following: 
‘‘(2) Unless the court finds that such disclosure 
would not assist in determining any legal or factual
issue pertinent to the case, the court shall disclose, 
if otherwise discoverable, to the aggrieved person, 
the counsel of the aggrieved person, or both, under 
the procedures and standards provided in the Classi-
fied Information Procedures Act (18 U.S.C. App.), 
portions of the application, order, or other materials 
relating to the use of the pen register or trap and 
trace device, as the case may be, or evidence or in-
formation obtained or derived from the use of a pen 
register or trap and trace device, as the case may 
be.’’. 
(d) 
DISCLOSURE
OF
CERTAIN
BUSINESS 
RECORDS.—(1) Title V of the Foreign Intelligence Sur-
veillance Act of 1978 (50 U.S.C. 1861 et seq.) is amend-
ed— 
(A) by redesignating section 502 as section 
503; and 
(B) by inserting after section 501 the fol-
lowing new section: 
‘‘DISCLOSURE
OF
CERTAIN
BUSINESS
RECORDS
AND 
ITEMS
GOVERNED
BY
THE
CLASSIFIED
INFORMA-
TION PROCEDURES ACT 
‘‘SEC. 502. Any disclosure of applications, informa-
tion, or items submitted or acquired pursuant to an order 
issued under section 501, if such information is otherwise 
discoverable, shall be conducted under the procedures and
standards provided in the Classified Information Proce-
dures Act (18 U.S.C. App.).’’. 
(2) The table of sections for that Act is amend-
ed— 
(A) by redesignating the item relating to 
section 502 as an item relating to section 503; 
and 
(B) inserting after the item relating to sec-
tion 501 the following new item: 
‘‘502. Disclosure of certain business records and items governed by the Classi-
fied Information Procedures Act.’’. 
SEC. 402. DATA-MINING REPORT. 
(a) DEFINITIONS.—In this section: 
(1) DATA-MINING.—The term ‘‘data-mining’’ 
means a query or search or other analysis of 1 or 
more electronic databases, where— 
(A) at least 1 of the databases was ob-
tained from or remains under the control of a 
non-Federal entity, or the information was ac-
quired initially by another department or agen-
cy of the Federal Government for purposes 
other than intelligence or law enforcement; 
(B) the search does not use a specific indi-
vidual’s personal identifiers to acquire informa-
tion concerning that individual; and
(C) a department or agency of the Federal 
Government is conducting the query or search 
or other analysis to find a pattern indicating 
terrorist or other criminal activity. 
(2) DATABASE.—The term ‘‘database’’ does not 
include telephone directories, information publicly 
available via the Internet or available by any other 
means to any member of the public without payment 
of a fee, or databases of judicial and administrative 
opinions. 
(b) REPORTS ON DATA-MINING ACTIVITIES.— 
(1) REQUIREMENT FOR REPORT.—The head of 
each department or agency of the Federal Govern-
ment that is engaged in any activity to use or de-
velop data-mining technology shall each submit a 
public report to Congress on all such activities of the 
department or agency under the jurisdiction of that 
official. 
(2) CONTENT OF REPORT.—A report submitted 
under paragraph (1) shall include, for each activity 
to use or develop data-mining technology that is re-
quired to be covered by the report, the following in-
formation:
(A) A thorough description of the data- 
mining technology and the data that will be 
used. 
(B) A thorough discussion of the plans for 
the use of such technology and the target dates 
for the deployment of the data-mining tech-
nology. 
(C) An assessment of the likely efficacy of 
the data-mining technology in providing accu-
rate and valuable information consistent with 
the stated plans for the use of the technology. 
(D) An assessment of the likely impact of 
the implementation of the data-mining tech-
nology on privacy and civil liberties. 
(E) A list and analysis of the laws and 
regulations that govern the information to be 
collected, reviewed, gathered, and analyzed with 
the data-mining technology and a description of 
any modifications of such laws that will be re-
quired to use the information in the manner 
proposed under such program. 
(F) A thorough discussion of the policies, 
procedures, and guidelines that are to be devel-
oped and applied in the use of such technology 
for data-mining in order to—
(i) protect the privacy and due process 
rights of individuals; and 
(ii) ensure that only accurate informa-
tion is collected and used. 
(G) A thorough discussion of the proce-
dures allowing individuals whose personal infor-
mation will be used in the data-mining tech-
nology to be informed of the use of their per-
sonal information and what procedures are in 
place to allow for individuals to opt out of the 
technology. If no such procedures are in place, 
a thorough explanation as to why not. 
(H) Any necessary classified information in 
an annex that shall be available to the Com-
mittee on Governmental Affairs, the Committee 
on the Judiciary, and the Committee on Appro-
priations of the Senate and the Committee on 
Homeland Security, the Committee on the Judi-
ciary, and the Committee on Appropriations of 
the House of Representatives. 
(3) TIME FOR REPORT.—Each report required 
under paragraph (1) shall be— 
(A) submitted not later than 90 days after 
the date of enactment of this Act; and
(B) updated once a year and include any 
new data-mining technologies. 
SEC. 403. PRIVACY PROTECTIONS ON GOVERNMENT AC-
CESS TO LIBRARY, BOOKSELLER, AND OTHER 
PERSONAL RECORDS UNDER FOREIGN IN-
TELLIGENCE SURVEILLANCE ACT OF 1978. 
(a) APPLICATIONS FOR ORDERS.—Subsection (b) of 
section 501 of the Foreign Intelligence Surveillance Act 
of 1978 (50 U.S.C. 1861) is amended— 
(1) in paragraph (1), by striking ‘‘and’’ at the 
end; 
(2) in paragraph (2), by striking the period at 
the end and inserting ‘‘; and’’; and 
(3) by adding at the end the following new 
paragraph: 
‘‘(3) shall specify that there are specific and 
articulable facts giving reason to believe that the 
person to whom the records pertain is a foreign 
power or an agent of a foreign power.’’. 
(b) ORDERS.—Subsection (c)(1) of that section is 
amended by striking ‘‘finds’’ and all that follows and in-
serting ‘‘finds that— 
‘‘(A) there are specific and articulable 
facts giving reason to believe that the person to
whom the records pertain is a foreign power or 
an agent of a foreign power; and 
‘‘(B) the application meets the other re-
quirements of this section.’’. 
(c) OVERSIGHT OF REQUESTS FOR PRODUCTION OF 
RECORDS.—Section 502 of that Act (50 U.S.C. 1862) is 
amended— 
(1) in subsection (a), by striking ‘‘the Perma-
nent’’ and all that follows through ‘‘the Senate’’ and 
inserting ‘‘the Permanent Select Committee on Intel-
ligence and the Committee on the Judiciary of the 
House of Representatives and the Select Committee 
on Intelligence and the Committee on the Judiciary 
of the Senate’’; and 
(2) in subsection (b), by striking ‘‘On a semi- 
annual basis,’’ and all that follows through ‘‘a report 
setting forth’’ and inserting ‘‘The report of the At-
torney General to the Committees on the Judiciary 
of the House of Representatives and the Senate 
under subsection (a) shall set forth’’. 
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