Somewhat different SAFE Acts have been introduced in both the House and Senate: S. 737 , the Security and Freedom Enhancement Act of 2005 (introduced by SenatorCraig) and H.R. 1526 , the Security and Freedom Ensured Act of 2005 (introduced byRepresentative Otter). (1) Although the Senate bill is more detailed, they address many of the same issues, most of which relateto the USA PATRIOT Act -- roving Foreign Intelligence Surveillance Act (FISA) wiretaps, delayednotification of "sneak and peek" search warrants, library and similar exemptions from FISA tangibleitem orders and communications related to national security letters, the definition of "domesticterrorism," and expansion of the sunset provisions of the USA PATRIOT Act. (2) Section 1 of the bills contains their short titles, the "Security and Freedom Ensured Act of2005 (SAFE) Act" in the case of H.R. 1526 ; and "Security and Freedom EnhancementAct of 2005" or "SAFE Act" in the case of S. 737 . Proposed Amendment of 50 U.S.C. 1805(c). TheForeign Intelligence Surveillance Act (FISA) permits federal judges assigned to serve on the ForeignIntelligence Surveillance Court to issue orders authorizing, for foreign intelligence gatheringpurposes, electronic surveillance (wiretapping), 50 U.S.C. 1801-1811; physical searches, 50 U.S.C.1821-1829; the use of trap and trace devices and pen registers (surreptitious caller id devices), 50U.S.C. 1841-1846; and access to tangible items (particularly business records), 50 U.S.C.1861-1862. Subsection 1805(c) describes the specifications and directions for FISA electronicsurveillance orders. Before 9/11, FISA electronic surveillance orders specified (1) the identity, ifknown , or the description of the target of the surveillance, 50 U.S.C. 1805(c)(1)(A)(2000ed. )(emphasis added), (2) the nature and location of the facilities or places at which the surveillancewas directed, 50 U.S.C. 1805(c)(1)(B)(2000 ed.) and (3) if requested, the identity of communicationsproviders, landlords and other person whose assistance would facilitate execution of the order, 50U.S.C. 1805(c)(2)(B)(2000 ed.). Section 206 of the USA PATRIOT Act temporarily altered this third feature to permit ageneral command for third party assistance without identifying a specific person, if the target of theorder regularly changed telephones or meeting places or took other evasive steps in order to thwartsurveillance efforts, 50 U.S.C. 1805(c)(2)(B). The intelligence authorization act for 2002 altered thesecond feature to require identification of the nature and location of targeted facilities and placesonly if they were known, 50 U.S.C. 1805(c)(1)(B). Thus, at least temporarily, FISA surveillanceorders may be issued that simply describe the target but do not otherwise identify the target, thefacilities or places to be targeted, or those communications providers or others whose assistance willbe commanded to facilitate execution of the order. Both the House and Senate bills amend subsection 1805(c) to require that FISA surveillanceorders identify either the target or the facilities or places targeted; orders merely describing the targetbecause the target's identity is unknown must identify the facilities or places targeted and orders thatdo not identify the facilities or places because they are unknown must identify the target. If thefacilities or places cannot be identified in the order, both bills limit execution of a FISA surveillanceorder to times when the target is present at the facility or place under surveillance. A. In General. The Fourth Amendment to theUnited States Constitution prohibits unreasonable searches and seizures, U.S.Const. Amend. IV. The Amendment does not apply when there is no reasonable expectation of privacy with respect tothe item seized, such as information or other property in the possession of a third party for example, United States v. Miller , 425 U.S. 435 (1976)(a customer has no expectation of privacy with respectto the records of his financial transactions subpoenaed from the customer's bank). Yet where areasonable expectation of privacy exists and subject to certain exigent circumstances, the FourthAmendment requires officers executing a search warrant to knock and announce their purpose beforeentering to execute the warrant, Richards v. Wisconsin , 520 U.S. 385 (1997); Wilson v. Arkansas ,514 U.S. 927 (1995). Prior to the USA PATRIOT Act, the Federal Rules of Criminal Procedure which implement the Amendment, instructed officers to leave a notice of the search and an inventoryof any items seized at the location where the search occurred, F.R.Crim.P. 41(d)(2000 ed.). Thelower federal appellate courts were divided over whether failure to provide notification should betreated as a violation of the Rule or as a constitutional violation; and they likewise could not agreeon how long notification might be postponed when exigent circumstances justified delayednotification, United States v. Freitas , 800 F.2d 1451 (9th Cir. 1986); United States v. Pangburn , 983F.2d 449 (2d Cir. 1993); United States v. Simmons , 206 F.3d 392 (4th Cir. 2000). Federal law permits delayed notification to customers of government access to theircommunications stored with service providers, 18 U.S.C. 2705, 2703(b) -- a situation under whichthere may well be no judicially recognized reasonable expectation of privacy. The law limits delaysto instances where contemporaneous disclosure would have adverse consequences. The list ofadverse consequences includes factors traditionally recognized as exigent circumstances for FourthAmendment purposes (risk of injury or flight, of the destruction of evidence, or of the intimidationof a potential witness) and two factors which probably would not be thought to constitute exigentcircumstances (seriously jeopardize an investigation or unduly delay a trial), 18 U.S.C. 2705(a)(2),(b). Section 213 of the USA PATRIOT Act amends 18 U.S.C. 3103a to permit delayednotification of the execution of a search warrant or court order for a reasonable time in presence ofany of the adverse conditions listed in 18 U.S.C. 2705, 18 U.S.C. 3103a(b). The two bills amend subsection 3103a(b) first to limit the grounds justifying delay to thosethat can be considered exigent circumstances (injury, flight, destruction of evidence, witnessintimidation risks) and second to confine the period of delay to no more than 7 days (with thepossibility of 21-day extensions). B. Reports. The bills direct the Attorney Generalto issue a public report every six months documenting the number of notify postponements andextensions requested and granted or denied, proposed 18 U.S.C. 3103a(c). The Senate bill alsoinsists that the report identify the nature of the crimes that have given rise to subsection 3103a(b)requests, proposed 18 U.S.C. 3103a(c)(2)(C). A. In General. Before the USA PATRIOT Act,FISA authorized judges and magistrates of the FISA court to issue orders affording the FederalBureau of Investigation (FBI) access to certain business records during the course of gatheringforeign intelligence information or investigating international terrorism, 50 U.S.C. 1861-1863 (2000ed.). Applications were to include "specific and articulable facts" for a belief that the subject of thebusiness records was a foreign power or the agent of a foreign power, 50 U.S.C. 1862(b)(2)(B)(2000ed.). The orders could be addressed to any transportation common carrier, public accommodationprovider, storage facility or vehicle rental business, 50 U.S.C. 1862(d)(1)(2000 ed. ), and recipientscould not disclose them except to the extent necessary to provide access to the records, 50 U.S.C.1862(d)(2)(2000 ed.). Section 215 of the USA PATRIOT Act temporarily rewrote this portion of FISA, 50 U.S.C.1861-1862. In the form scheduled to sunset on December 31, 2005, FISA court orders are availablefor FBI access to "any tangible things (including books, records, papers, documents, and otheritems)" without regard to whether they pertain to a foreign power or any of its agents as long asaccess is sought to obtain foreign intelligence information (not concerning a United States person)or to protect against international terrorism or clandestine intelligence activities, 50 U.S.C.1861(a)(1). Section 215 kept the nondisclosure feature and granted recipients protection from civilliability for compliance with a FISA order, 50 U.S.C. 1861(d),(e). Both bills restrict the temporary FISA tangible things access orders to instances where thereare specific and articulable reasons to believe that the records pertain to a foreign power or one ormore of its agents, proposed 50 U.S.C. 1861(b),(c). The Senate bill alone provides that the ordermay be no more sweeping than a grand jury subpoena duces tecum issued in the context of anespionage or international terrorism investigation ( i.e.