Print[Congressional Bills 109th Congress]
[From the U.S. Government Printing Office]
[S. 1266 Reported in Senate (RS)]
Calendar No. 132
109th CONGRESS
1st Session
S. 1266
[Report No. 109-85]
To permanently authorize certain provisions of the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, to
reauthorize a provision of the Intelligence Reform and Terrorism
Prevention Act of 2004, to clarify certain definitions in the Foreign
Intelligence Surveillance Act of 1978, to provide additional
investigative tools necessary to protect the national security, and for
other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 16, 2005
Mr. Roberts, from the Select Committee on Intelligence, reported the
following original bill; which was read twice and placed on the
calendar
_______________________________________________________________________
A BILL
To permanently authorize certain provisions of the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, to
reauthorize a provision of the Intelligence Reform and Terrorism
Prevention Act of 2004, to clarify certain definitions in the Foreign
Intelligence Surveillance Act of 1978, to provide additional
investigative tools necessary to protect the national security, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
TITLE I--REPEAL AND EXTENSION OF SUNSET ON CERTAIN AUTHORITIES
SEC. 101. EXPANSION OF ENHANCED SURVEILLANCE PROCEDURES NOT SUBJECT TO
SUNSET UNDER USA PATRIOT ACT.
Section 224(a) of the USA PATRIOT Act of 2001 (Public Law 107-56;
115 Stat. 295; 18 U.S.C. 2510 note) is amended--
(1) by striking ``203(a), 203(c)'' and inserting ``203,
204'';
(2) by inserting ``206, 207,'' after ``205,'';
(3) by inserting ``214, 215,'' after ``213,'';
(4) by inserting ``218,'' after ``216,''; and
(5) by striking ``and 222'' and inserting ``222, and 225''.
SEC. 102. EXTENSION OF SUNSET OF TREATMENT OF INDIVIDUAL TERRORISTS AS
AGENTS OF FOREIGN POWERS.
Subsection (b) of section 6001 of the Intelligence Reform and
Terrorism Prevention Act of 2004 (Public Law 108-458; 118 Stat. 3742)
is amended to read as follows:
``(b) Sunset.--(1) Except as provided in paragraph (2), the
amendment made by subsection (a) shall cease to have effect on December
31, 2009.
``(2) With respect to any particular foreign intelligence
investigation that began before the date on which the amendment made by
subsection (a) ceases to have effect, section 101(b)(1) of the Foreign
Intelligence Surveillance Act of 1978, as amended by subsection (a),
shall continue in effect.''.
TITLE II--FOREIGN INTELLIGENCE SURVEILLANCE MATTERS
Subtitle A--Definitional Matters
SEC. 201. CLARIFICATION OF CONTENTS OF COMMUNICATIONS FOR PURPOSES OF
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
Subsection (n) of section 101 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801) is amended to read as
follows:
``(n) `Contents', when used with respect to a communication,
includes any information concerning the substance, purport, or meaning
of such communication.''.
SEC. 202. CLARIFICATION OF FOREIGN INTELLIGENCE INFORMATION FOR
PURPOSES OF FOREIGN INTELLIGENCE SURVEILLANCE ACT OF
1978.
Section 101(e)(1) of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801(e)(1)) is amended in the matter preceding
subparagraph (A) by inserting ``(including protection by use of law
enforcement methods such as criminal prosecution)'' after ``protect''.
Subtitle B--Other Matters
SEC. 211. ACCESS TO BUSINESS RECORDS FOR INVESTIGATIONS UNDER FOREIGN
INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) Clarification of Access.--(1) Subsection (a)(1) of section 501
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861)
is amended--
(A) by striking ``items) for'' and inserting ``items)
relevant to''; and
(B) by striking ``clandestine intelligence activities,''
and all that follows through the period and inserting
``clandestine intelligence activities.''.
(2) Subsection (b)(2) of such section is amended by striking
``sought for'' and inserting ``relevant to''.
(b) Limitations on Disclosure.--Such section is further amended by
striking subsection (d) and inserting the following new subsection (d):
``(d)(1) No person shall disclose to any other person that the
Federal Bureau of Investigation has sought or obtained tangible things
pursuant to an order under this section other than to--
``(A) those persons to whom such disclosure is necessary to
comply with such order;
``(B) an attorney to obtain legal advice or assistance with
respect to the production of things in response to the order;
or
``(C) other persons as permitted by the Director of the
Federal Bureau of Investigation or the designee of the
Director.
``(2)(A) Any person having received a disclosure under subparagraph
(A), (B), or (C) of paragraph (1) shall be subject to the prohibitions
on disclosure under that paragraph.
``(B) Any person making a further disclosure authorized by
subparagraph (A), (B), or (C) of paragraph (1) shall notify the person
to whom the disclosure is made of the prohibitions on disclosure under
this subsection.
``(3) An order under this section shall notify, in writing, the
person to whom the order is directed of the nondisclosure requirements
under this subsection.''.
(c) Minimization of Retention and Dissemination of Tangible
Things.--Such section is further amended by adding at the end the
following new subsection:
``(f) The Attorney General shall adopt minimization procedures
governing the retention and dissemination by the Federal Bureau of
Investigation of any tangible things received by the Bureau in response
to an order under this section.''.
(d) Judicial Review.--Such section is further amended by adding at
the end the following new subsection:
``(g)(1) Following the receipt of an order under this section, but
before the production of tangible things under the order, the person
charged with production of such tangible things may, in the Foreign
Intelligence Surveillance Court, petition to modify or set aside the
order. Such petition shall be filed in a manner consistent with
paragraph (2).
``(2)(A) All proceedings under this subsection shall be closed
consistent with the requirements of subsection (d) and subject to any
right to an open hearing in a criminal proceeding.
``(B) All petitions, filings, records, orders, and subpoenas with
respect to any proceedings under this subsection shall be filed and
maintained under seal.
``(3)(A) In any proceedings under this subsection, the Foreign
Intelligence Surveillance Court shall, upon request of the Federal
Government, review any submission, or portion thereof, of the Federal
Government containing classified information, or other sensitive
information the disclosure of which would harm national security, ex
parte and in camera.
``(B) If the Court reviews any submission of the Federal Government
under subparagraph (A) ex parte and in camera, the Court may disclose
the information subject to such review to the person filing the
petition concerned, under appropriate security procedures and
protective orders, only where such disclosure is necessary to make an
accurate determination for purposes of paragraph (5).
``(4) The Foreign Intelligence Surveillance Court may modify or set
aside a nondisclosure requirement imposed under subsection (d) at the
request of the person charged with production of tangible things
pursuant to an order under this section, unless the Director of the
Federal Bureau of Investigation certifies to the Court that disclosure
may result in a danger to the national security of the United States.
``(5) The Foreign Intelligence Surveillance Court may modify or set
aside an order under this section if compliance with the order would be
unreasonable or oppressive.
``(6) The Foreign Intelligence Surveillance Court shall adopt and
publish procedures governing petitions filed under this subsection.
``(7) In this subsection, the term `Foreign Intelligence
Surveillance Court' means the court established by section 103(a).''.
(e) Congressional Oversight.--Section 502(b) of such Act (50 U.S.C.
1862(b)) 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) the total number of applications made for orders
approving requests for the production of tangible things under
section 501, and the total number of orders either granted,
modified, or denied, when the application or order involved
each of the following:
``(A) The production of tangible things from a
library, as defined in section 213(2) of the Library
Services and Technology Act (20 U.S.C. 9122(2)).
``(B) The production of tangible things from a
person or entity primarily engaged in the sale, rental,
or delivery of books, journals, magazines, or other
similar forms of communication whether in print or
digitally.
``(C) The production of records related to the
purchase of a firearm, as defined in section 921(a)(3)
of title 18, United States Code.
``(D) The production of health information, as
defined in section 1171(4) of the Social Security Act
(42 U.S.C. 1320d(4)).
``(E) The production of taxpayer return
information, return, or return information, as defined
in section 6103(b) of the Internal Revenue Code of 1986
(26 U.S.C. 6103(b)).''.
SEC. 212. NATIONAL SECURITY MAIL COVERS.
(a) In General.--The Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended--
(1) by striking title VII; and
(2) by adding at the end the following new title VII:
``TITLE VII--NATIONAL SECURITY MAIL COVERS
``definitions
``Sec. 701. In this title:
``(1) The terms `foreign intelligence information',
`foreign power', `international terrorism', and `United States
person' have the meaning given such terms in section 101.
``(2)(A) The term `mail cover' means the process by which--
``(i) a nonconsensual record is made of any data
appearing on the outside cover of any sealed mail or
unsealed mail delivered to an address, forwarding
address, or Post Office box; or
``(ii) a record is made of the contents of any
unsealed mail as authorized by law.
``(B) The term does not include any transcription,
photograph, photocopy, or any other facsimile of the image of
the contents of any sealed mail.
``(C) The term also does not include the making of a record
of the data appearing on the outside cover of any sealed mail
or unsealed mail, or the contents of any unsealed mail, mailed
between the target and the target's known attorney.
``(3) The term `record' means--
``(A) in the case of any mail, a transcription,
photograph, photocopy, or other facsimile of the image
of the outside contents, cover, envelope, or wrapper of
such mail; and
``(B) in the case of unsealed mail, a
transcription, photograph, photocopy, or other
facsimile of the image of the contents of such mail.
``(4) The term `sealed mail' means mail on which
appropriate postage is paid, and which under postal laws and
regulations is included within a class of mail maintained by
the United States Postal Service for the transmission of mail
sealed against inspection, including first class mail, express
mail, international letter mail, and mailgram messages.
``(5) The term `unsealed mail' means mail on which
appropriate postage for sealed mail has not been paid and which
under postal laws or regulations is not included within a class
of mail maintained by the United States Postal Service for the
transmission of mail sealed against inspection, including
second class mail, third class mail, and fourth class mail, and
international parcel post mail.
``national security mail covers
``Sec. 702. (a) Duty To Provide.--(1) The United States Postal
Service shall comply with each request for mail covers made under
subsection (b).
``(2) In complying under paragraph (1) with a request for mail
covers with respect to a target specified in the request, the United
States Postal Service shall provide available records of all mail
matter specified in the request that is delivered to the address,
forwarding address, or Post Office box of the target as specified in
the request.
``(3) In complying under paragraph (1) with a request for mail
covers with respect to a target specified in the request, the United
States Postal Service shall, if requested, provide available records of
all outgoing mail matter from such target.
``(4) Mechanical reproduction shall be used to make records under
this subsection, unless circumstances render such reproduction
impracticable.
``(b) Requests for Mail Covers.--(1) The Director of the Federal
Bureau of Investigation, or a designee of the Director in a position
not lower than Deputy Assistant Director at Bureau headquarters or
Special Agent in Charge (including an `acting' Special Agent in Charge)
in a Bureau field office designated by the Director, may request mail
covers under subsection (a) if the Director or such designee certifies
in writing to the United States Postal Service that such mail covers
are relevant to an authorized investigation to obtain foreign
intelligence information not concerning a United States person or to
protect against international terrorism or clandestine intelligence
activities.
``(2) The Postmaster General shall designate officers and employees
of the United States Postal Service who are eligible to receive
requests under paragraph (1).
``(3) An investigation conducted under this section shall--
``(A) be conducted under guidelines approved by the
Attorney General under Executive Order 12333 (or a successor
order); and
``(B) not be conducted concerning a United States person
solely on the basis of activities protected by the first
amendment to the Constitution of the United States.
``(c) Contents of Request.--In addition to the certification
required under subsection (b) with respect to a request for mail covers
described in that subsection, a request for mail covers under
subsection (b) shall specify--
``(1) the name and address of the Federal Bureau of
Investigation official making the request;
``(2) the authority of such official to make the request;
``(3) the name, if known, of the target of the request;
``(4) the name, if known, of the known attorney of the
target;
``(5) at least one, and any additional (if known), of the
address, forwarding address, or Post Office box of the target;
``(6) the classes of mail to be covered by the request;
``(7) whether incoming mail, outgoing mail, or both are to
be covered by the request;
``(8) the duration of the request; and
``(9) the name and phone number of a local official of the
Bureau who will facilitate the collection of the records
produced in response to the request.
``(d) Duration.--(1) Except as provided in paragraph (2), no
request for mail covers under subsection (b) shall remain in force
longer than 120 consecutive days.
``(2) In the case of a request for mail covers under subsection (b)
targeted against a foreign power, the request shall remain in force for
the lesser of--
``(A) the period specified in the request; or
``(B) one year.
``(3)(A) A request under subsection (b) may be extended, but only
upon submittal of a new request under this section.
``(B) Except as provided in subparagraph (C), the period of
extension under this paragraph of a request for mail covers shall not
be more than 120 days.
``(C) The period of extension under this paragraph of a request for
mail covers targeted against a foreign power or an agent of a foreign
power (as defined in section 101(b)(1)(A)) shall be for the lesser of--
``(i) the period specified in the request for extension
under this paragraph; or
``(ii) one year.
``(e) Minimization.--The Attorney General shall adopt minimization
procedures governing the retention and dissemination by the Federal
Bureau of Investigation of any records received by the Bureau in
response to a request under subsection (b).
``(f) Nondisclosure Requirements.--(1) No officer or employee of
the United States Postal Service, or agent thereof, shall disclose to
any person that the Federal Bureau of Investigation has sought or
received records under a request under subsection (b) other than to--
``(A) those persons to whom such disclosure is necessary to
comply with the request;
``(B) an attorney, who shall be an officer or employee of
the United States Postal Service, to obtain legal advice or
assistance with respect to the production of records in
response to the request; or
``(C) other persons as permitted by the Director of the
Federal Bureau of Investigation or a designee of the Director
under subsection (b).
``(2)(A) Any person having received a disclosure under subparagraph
(A), (B), or (C) of paragraph (1) shall be subject to the prohibitions
on disclosure under that paragraph.
``(B) Any person making a further disclosure authorized by
subparagraph (A), (B), or (C) of paragraph (1) shall notify the person
to whom the disclosure is made of the prohibitions on disclosure under
this subsection.
``(3) A request under subsection (b) shall notify, in writing, the
person to whom the request is directed of the nondisclosure
requirements under this subsection.
``congressional oversight
``Sec. 703. (a) Semiannual Notice on Use of Mail Covers.--On a
semiannual basis, the Attorney General shall fully inform the Select
Committee on Intelligence of the Senate and the Permanent Select
Committee on Intelligence of the House of Representatives concerning
all requests for, and use of, national security mail covers pursuant to
this title.
``(b) Semiannual Report on Mail Covers Requested.--On a semiannual
basis, the Attorney General shall submit to the committees of Congress
referred to in subsection (a) and to the Committees on the Judiciary of
the Senate and the House of Representatives a report setting forth,
with respect to the preceding six-month period, the total number of
national security mail covers requested under this title.''.
(b) Clerical Amendment.--The table of contents for that Act is
amended by striking the items relating to title VII and section 701 and
inserting the following new items:
``TITLE VII--NATIONAL SECURITY MAIL COVERS
``Sec. 701. Definitions.
``Sec. 702. National security mail covers.
``Sec. 703. Congressional oversight.''.
SEC. 213. ADMINISTRATIVE SUBPOENAS IN NATIONAL SECURITY INVESTIGATIONS.
(a) In General.--The Foreign Intelligence Surveillance Act of 1978,
as amended by section 212(a) of this Act, is further amended by adding
at the end the following new title:
``TITLE VIII--ADMINISTRATIVE SUBPOENAS IN NATIONAL SECURITY
INVESTIGATIONS
``definitions
``Sec. 801. In this title:
``(1) The terms `international terrorism', `foreign
intelligence information', `Attorney General', and `United
States person' have the meaning given such terms in section
101.
``(2) The term `Foreign Intelligence Surveillance Court'
means the court established by section 103(a).
``authorization to issue
``Sec. 802. (a) Authorization To Issue.--
``(1) In general.--The Attorney General, or a designee of
the Attorney General under paragraph (2), may issue in writing
and caused to be served a subpoena requiring--
``(A) the production of any records or other
materials that are relevant to an authorized
investigation--
``(i) to obtain foreign intelligence
information not concerning a United States
person; or
``(ii) to protect against international
terrorism or clandestine intelligence
activities; and
``(B) a certification by the custodian of such
records or other materials concerning the production
and authentication of such records or other materials.
``(2) Designees.--A designee of the Attorney General under
this paragraph is any official designated by the Attorney
General from officials as follows:
``(A) Any official of the Department of Justice in
a position not lower than Assistant Attorney General
which position has responsibility for national security
investigations.
``(B) Any United States Attorney.
``(C) Any Assistant United States Attorney with
responsibility for national security investigations.
``(D) The Director of the Federal Bureau of
Investigation.
``(E) Any official of the Federal Bureau of
Investigation in a position not lower than Deputy
Assistant Director, at Bureau headquarters, or a
Special Agent in Charge (including an `acting' Special
Agent in Charge), at a Bureau field office.
``(b) Governing Authorities.--An investigation conducted under this
section shall--
``(1) be conducted under guidelines approved by the
Attorney General under Executive Order 12333 (or a successor
order); and
``(2) not be conducted concerning a United States person
solely upon the basis of activities protected by the first
amendment to the Constitution of the United States.
``(c) Records Not Subject To Production.--Any documentary evidence
that would be privileged from disclosure if demanded by a subpoena
duces tecum issued by a court of the United States in aid of a grand
jury investigation of espionage or international terrorism shall be
privileged from disclosure if demanded by a subpoena issued under this
section.
``contents of subpoenas
``Sec. 803. A subpoena issued under section 802 shall describe the
records or items required to be produced and prescribe a return date
within a reasonable period of time within which such records or items
can be assembled and made available and at a location not more than 500
miles distant from the place where the subpoena was served.
``production of records
``Sec. 804. The production of records under a subpoena issued under
section 802 may be required from any place in any State, or in any
territory or other place subject to the jurisdiction of the United
States.
``service
``Sec. 805. (a) In General.--A subpoena issued under section 802
may be served by any person designated in the subpoena as the agent of
service.
``(b) Service of Subpoena.--
``(1) Natural person.--Service of a subpoena upon a natural
person may be made by personal delivery of the subpoena to that
person, or by certified mail with return receipt requested.
``(2) Business entities and associations.--Service of a
subpoena may be made upon a domestic or foreign corporation, or
upon a partnership or other unincorporated association that is
subject to suit under a common name, by delivering the subpoena
to an officer, to a managing or general agent, or to any other
agent authorized by appointment or by law to receive service of
process.
``(3) Proof of service.--The affidavit of the person
serving the subpoena entered by that person on a true copy
thereof shall be sufficient proof of service.
``enforcement
``Sec. 806. (a) Enforcement.--
``(1) In general.--In the case of a failure or refusal to
obey a subpoena issued under section 802 to any person or
entity, the Attorney General may invoke the aid of the Foreign
Intelligence Surveillance Court or any court of the United
States within the jurisdiction of which the investigation
concerned is carried on, or the subpoenaed person resides,
carries on business, or may be found, to compel compliance with
the subpoena.
``(2) Venue for proceedings.--If a person or entity files,
in a court other than the court in which the Government files
for enforcement proceedings under paragraph (1), a petition
under section 808 for judicial review of a subpoena issued
under section 802 before the Government files for such
enforcement proceedings under paragraph (1), the court in which
such enforcement proceedings are initiated under paragraph (1)
shall dismiss, without prejudice, such enforcement proceedings
or transfer further proceedings under this section to the court
in which such judicial review proceedings have been initiated.
``(b) Order.--A court of the United States referred to in
subsection (a) may issue an order requiring the subpoenaed person to
produce records or items in accordance with the subpoena, to appear, or
to give testimony relating to compliance with the subpoena. Any failure
to obey the order of the court may be punished by the court as contempt
thereof.
``(c) Service of Process.--Any process under this subsection may be
served in any judicial district in which the person may be found.
``nondisclosure requirements
``Sec. 807. (a) In General.--If the Attorney General, or a designee
of the Attorney General under section 802, certifies that a danger to
the national security of the United States may result, no person shall
disclose to any other person that a subpoena was received or records
were provided pursuant to this title, other than to--
``(1) those persons to whom such disclosure is necessary to
comply with the subpoena;
``(2) an attorney to obtain legal advice or assistance with
respect to the production of records in response to the
subpoena; or
``(3) other persons as permitted by the Attorney General or
the designee of the Attorney General.
``(b) Notice of Nondisclosure Requirements.--
``(1) In general.--A subpoena under section 802 shall
notify, in writing, the person to whom the subpoena is directed
of the nondisclosure requirements under subsection (a).
``(2) Notice under further disclosures.--Any person making
a further disclosure authorized by paragraph (1), (2), or (3)
of subsection (a) shall notify the person to whom the
disclosure is made of the prohibitions on disclosure under this
section.
``(c) Further Applicability of Nondisclosure Requirements.--Any
person who receives a disclosure under this section shall be subject to
the prohibitions on disclosure under subsection (a).
``(d) Enforcement of Nondisclosure Requirements.--Whoever knowingly
violates subsection (a) or (c) shall be imprisoned for not more than 1
year, fined not more than $10,000, or both, and if the violation is
committed with the intent to obstruct an investigation described in
section 802(a)(1), shall be imprisoned for not more than 5 years, fined
not more than $50,000, or both.
``(e) Termination of Nondisclosure Requirements.--If the Attorney
General, or a designee of the Attorney General under section 802,
concludes with respect to any subpoena issued under section 802 and for
which a certification has been made under subsection (a) that
nondisclosure is no longer justified by a danger to the national
security of the United States--
``(1) the provisions of subsections (a) through (d) of this
section shall no longer apply with respect to such subpoena;
and
``(2) an officer, employee, or agency of the United States
shall notify the relevant person that such provisions shall no
longer apply with respect to such subpoena.
``judicial review
``Sec. 808. (a) Judicial Review.--
``(1) In general.--At any time before the return date
specified in a subpoena issued under section 802, the person or
entity subpoenaed may, in the Foreign Intelligence Surveillance
Court or the district court for the district in which that
person or entity does business or resides, petition for an
order modifying or setting aside the subpoena. Such petition
shall be filed in a manner consistent with paragraph (3).
``(2) Venue for proceedings.--If the Government files, in a
court other than the court in which judicial review proceedings
are initiated under paragraph (1), an enforcement action under
section 806 before a petition for judicial review proceedings
is filed under paragraph (1), the court in which such petition
is filed under paragraph (1) shall dismiss, without prejudice,
such judicial review proceedings or transfer further
proceedings under this section to the court in which such
enforcement proceedings have been initiated.
``(3) Closed proceedings.--If a certification has been made
under section 807(a) with respect to a subpoena, and the
nondisclosure requirements of section 807 continue to apply
with respect to such subpoena--
``(A) all proceedings under this section shall be
closed to the extent necessary to ensure nondisclosure
of the issuance of the subpoena, subject to any right
to an open hearing in a criminal proceeding; and
``(B) all petitions, filings, records, orders, and
subpoenas with respect to such proceedings shall be
filed and maintained under seal.
``(b) Review of Government Submissions.--
``(1) Requirements regarding certain information.--In all
proceedings under this section, the court shall, upon request
of the Federal Government, review any submission of the Federal
Government, or portion thereof, containing classified
information, or other sensitive information the disclosure of
which would harm national security, ex parte and in camera.
``(2) Limited authority to disclose.--If the court reviews
any submission of the Federal Government under paragraph (1) ex
parte and in camera, the court may disclose the information
subject to such review to the person filing the petition
concerned, under appropriate security procedures and protective
orders, only where such disclosure is necessary to make an
accurate determination for purposes of subsection (d).
``(c) Modification of Nondisclosure Requirements.--A court may
modify or set aside a nondisclosure requirement imposed under section
807 at the request of a person to whom a subpoena has been directed
under section 802, unless the Attorney General or the Director of the
Federal Bureau of Investigation certifies to the court that disclosure
may result in a danger to the national security of the United States.
``(d) Standard of Review.--A court may modify or set aside a
subpoena under this section if compliance with the subpoena would be
unreasonable or oppressive.
``immunity from civil liability
``Sec. 809. Any person, including any officer, agent, or employee of
a non-natural person, who in good faith produces the records or items
requested in a subpoena issued under section 802 shall not be liable in
any court of the United States or any State to any customer or other
person for such production, or for nondisclosure of that production to
the customer or other person.
``guidelines and procedures
``Sec. 810. (a) In General.--The Attorney General, in consultation
with the Director of the Federal Bureau of Investigation, shall, by
regulation, establish such guidelines as are necessary to ensure the
effective implementation of this title.
``(b) Minimization.--The Attorney General shall adopt specific
minimization procedures governing the retention and dissemination by
the Federal Bureau of Investigation of any records received by the
Bureau in response to a subpoena under this title.
``(c) Procedures.--The Foreign Intelligence Surveillance Court
shall adopt and publish procedures governing the enforcement, under
section 806, and judicial review, under section 808, of subpoenas under
this title.
``congressional oversight
``Sec. 811. (a) Semiannual Notice on Use of Administrative
Subpoenas.--On a semiannual basis, the Attorney General shall fully
inform the Select Committee on Intelligence of the Senate and the
Permanent Select Committee on Intelligence of the House of
Representatives concerning all requests for, and uses of,
administrative subpoenas pursuant to this title.
``(b) Semiannual Report on Administrative Subpoenas Requested.--On
a semiannual basis, the Attorney General shall submit to the committees
of Congress referred to in subsection (a) and to the Committees on the
Judiciary of the Senate and the House of Representatives a report
setting forth, with respect to the preceding six-month period--
``(1) the total number of administrative subpoenas issued
under this title;
``(2) the total number of certifications under section
807(a);
``(3) the total number of petitions filed under section
808;
``(4) the total number of petitions modified or set aside
pursuant to section 808(a); and
``(5) the total number of administrative subpoenas issued
under this title requiring the production of any records or
other materials from or with respect to each of the following:
``(A) From a library, as defined in section 213(2)
of the Library Services and Technology Act (20 U.S.C.
9122(2)).
``(B) From a person or entity primarily engaged in
the sale, rental, or delivery of books, journals,
magazines, or other similar forms of communication
whether in print or digitally.
``(C) With respect to the purchase of a firearm, as
defined in section 921(a)(3) of title 18, United States
Code.
``(D) With respect to health information, as
defined in section 1171 of the Social Security Act (42
U.S.C. 1320d(4)).
``(E) With respect to taxpayer return information,
return, or return information, as defined in section
6103(b) of the Internal Revenue Code of 1986 (26 U.S.C.
6103(b)).''.
(b) Clerical Amendment.--The table of contents for that Act, as
amended by section 212(b) of this Act, is further amended adding at the
end the following new items:
``TITLE VIII--ADMINISTRATIVE SUBPOENAS IN NATIONAL SECURITY
INVESTIGATIONS
``Sec. 801. Definitions.
``Sec. 802. Authorization to issue.
``Sec. 803. Contents of subpoena.
``Sec. 804. Production of records.
``Sec. 805. Service.
``Sec. 806. Enforcement.
``Sec. 807. Nondisclosure requirements.
``Sec. 808. Judicial review.
``Sec. 809. Immunity from civil liability.
``Sec. 810. Guidelines and procedures.
``Sec. 811. Congressional oversight.''.
(c) Implementation.--(1) The Attorney General shall issue the
guidelines required by section 810(a) of the Foreign Intelligence
Surveillance Act of 1978, as added by subsection (a), not later than
180 days after the date of the enactment of this Act.
(2) Not later than 180 days after the date of the issuance of the
guidelines described in paragraph (1), the Federal Bureau of
Investigation shall use the authority for administrative subpoenas
provided in title VIII of the Foreign Intelligence Surveillance Act of
1978, as so added--
(A) to access certain communication service provider
records in lieu of the authority in section 2709 of title 18,
United States Code;
(B) to obtain financial institution customer records in
lieu of the authority in section 1114 of the Right to Financial
Privacy Act (12 U.S.C. 3414);
(C) to obtain financial information, records, and consumer
reports in lieu of the authority in section 802 of the National
Security Act of 1947 (50 U.S.C. 436);
(D) to obtain certain financial information and consumer
reports in lieu of the authority in section 625 of the Fair
Credit Reporting Act (15 U.S.C. 1681u); and
(E) to obtain credit agency consumer records for
counterterrorism investigations in lieu of the authority in
section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v).
(d) Report.--(1) The Attorney General and Director of National
Intelligence shall, in consultation with the heads of other affected
departments and agencies of the United States Government, examine the
continuing need for the authority in title V of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.), and the
authority to utilize so-called ``national security letters'' (including
requests under the authorities referred to in subparagraphs (A) through
(E) of subsection (c)(2)), in light of the amendments made by this
section.
(2) Not later than one year after the date of the enactment of this
Act, the Attorney General and the Director shall jointly submit to the
appropriate committees of Congress a report on the examination
conducted under paragraph (1). The report shall be submitted in
unclassified form, but may include a classified annex.
(3) In this subsection, the term ``appropriate committees of
Congress'' means--
(A) the Select Committee on Intelligence and the Committee
on the Judiciary of the Senate; and
(B) the Permanent Select Committee on Intelligence and the
Committee on the Judiciary of the House of Representatives.
(e) Sunset.--(1) Except as provided in paragraph (2), this section,
and the amendments made by this section, shall cease to have effect on
December 31, 2009.
(2) With respect to any particular foreign intelligence
investigation that began before the date on which the provisions
referred to in paragraph (1) cease to have effect, such provisions
shall continue in effect.
SEC. 214. MODIFICATION OF SEMIANNUAL REPORT REQUIREMENT ON ACTIVITIES
UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
Paragraph (2) of section 108(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1808(a)) is amended to read as
follows:
``(2) Each report under the first sentence of paragraph (1) shall
include a description of each criminal case in which information
acquired under this Act has been authorized for use at trial during the
period covered by such report.''.
SEC. 215. AUTHORITY FOR DISCLOSURE OF ADDITIONAL INFORMATION IN
CONNECTION WITH ORDERS FOR PEN REGISTERS OR TRAP AND
TRACE DEVICES UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT
OF 1978.
Section 402(d)(2) of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1842(d)(2)) is amended--
(1) in subparagraph (A)--
(A) in clause (ii), by adding ``and'' at the end;
and
(B) in clause (iii), by striking the period at the
end and inserting a semicolon; and
(2) in subparagraph (B)(iii), by striking the period at the
end and inserting ``; and''; and
(3) by adding at the end the following new subparagraph:
``(C) shall direct that, upon the request of the applicant,
the provider of a wire or electronic communication service
shall disclose to the Federal officer using the pen register or
trap and trace device covered by the order--
``(i) in the case of the customer or subscriber
using the service covered by the order (for the period
specified by the order)--
``(I) the name of the customer or
subscriber;
``(II) the address of the customer or
subscriber;
``(III) the telephone or instrument number,
or other subscriber number or identifier, of
the customer or subscriber, including any
temporarily assigned network address or
associated routing or transmission information;
``(IV) the length of the provision of
service by such provider to the customer or
subscriber and the types of services utilized
by the customer or subscriber;
``(V) in the case of a provider of local or
long distance telephone service, any local or
long distance telephone records of the customer
or subscriber;
``(VI) if applicable, any records
reflecting period of usage (or sessions) by the
customer or subscriber; and
``(VII) any mechanisms and sources of
payment for such service, including the number
of any credit card or bank account utilized for
payment for such service; and
``(ii) if available, with respect to any customer
or subscriber of incoming or outgoing communications to
or from the service covered by the order--
``(I) the name of such customer or
subscriber;
``(II) the address of such customer or
subscriber;
``(III) the telephone or instrument number,
or other subscriber number or identifier, of
such customer or subscriber, including any
temporarily assigned network address or
associated routing or transmission information;
and
``(IV) the length of the provision of
service by such provider to such customer or
subscriber and the types of services utilized
by such customer or subscriber.''.
SEC. 216. SURVEILLANCE OF CERTAIN NON-UNITED STATES PERSONS UNDER
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) Treatment as Agent of Foreign Power of Non-United States
Persons Who Aid or Abet Certain Terrorists and Saboteurs.--Section
101(b)(1)(A) of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801(b)(1)(A)) is amended by inserting ``, knowingly aids or
abets any person in the conduct of activities described in paragraph
(2)(C) for or on behalf of a foreign power, as defined in subsection
(a)(4), or knowingly conspires with any person engaged in activities
described in paragraph (2)(C) for or on behalf of a foreign power, as
defined in subsection (a)(4)'' before the semicolon.
(b) Duration of Pen Registers and Trap and Trace Devices.--
Subsection (e) of section 402 of such Act (50 U.S.C. 1842) is amended
to read as follows:
``(e)(1)(A) Except as provided in subparagraphs (B) and (C), an
order issued under this section shall authorize the installation and
use of a pen register or trap and trace device for a period not to
exceed 90 days.
``(B) In any case in which the applicant for an order under this
section certifies that the information likely to be obtained is foreign
intelligence information concerning a foreign power (as defined in
paragraph (1), (2), or (3) of section 101(a)), the order may be for the
period specified in the application or for one year, whichever is less.
``(C) In any case in which the applicant for an order under this
section certifies that the information likely to be obtained is foreign
intelligence information concerning an agent of a foreign power (as
defined in section 101(b)(1)(A)), the order may be for the period
specified in the application or for 120 days, whichever is less.
``(2)(A) Extensions of an order under this section may be granted,
but only upon application for an order under this section and upon the
judicial finding required by subsection (d).
``(B) Except as provided in subparagraph (C), an extension under
this paragraph of an order under this section shall be for a period not
to exceed 90 days.
``(C) In any case in which the applicant for an extension under
this paragraph certifies that the information likely to be obtained is
foreign intelligence information concerning a foreign power (as defined
in paragraph (1), (2), or (3) of section 101(a)) or an agent of a
foreign power (as defined in section 101(b)(1)(A)), the extension may
be for a period not to exceed one year.''.
SEC. 217. ADDITIONAL INFORMATION IN APPLICATIONS FOR ORDERS FOR PEN
REGISTERS AND TRAP AND TRACE DEVICES AND BUSINESS RECORDS
UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) Orders for Pen Registers and Trap and Trace Devices.--Section
402(c) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1842(c)) is amended--
(1) in paragraph (1), by striking ``and'' at the end;
(2) in paragraph (2), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following new paragraph:
``(3) an explanation by the applicant that supports the
assertion of relevance under paragraph (2).''.
(b) Orders for Business Records.--Subsection (b) of section 501 of
such Act, as amended by section 211(a)(2) of this Act, is further
amended--
(1) in paragraph (1)(B), 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 include an explanation by the applicant that
supports the assertion of relevance under paragraph (2).''.
SEC. 218. FORM OF SEMIANNUAL REPORTS ON ACCESS TO BUSINESS RECORDS
UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
Section 502(b) of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1862(b)), as amended by section 211(e) of this Act, is
further amended--
(1) in paragraph (3), by redesignating subparagraphs (A)
through (E) as clauses (i) through (v), respectively;
(2) by redesignating paragraphs (1), (2), and (3) as
subparagraphs (A), (B), and (C), respectively;
(3) by inserting ``(1)'' after ``(b)''; and
(4) by adding at the end the following new paragraph:
``(2) Each report under paragraph (1) shall be submitted in
unclassified form, but may include a classified annex.''.
SEC. 219. REPORT ON VOLUNTARY DISCLOSURE OF BUSINESS RECORDS FOR
FOREIGN INTELLIGENCE PURPOSES.
(a) Report Required.--Not later than six months after the date of
the enactment of this Act, the Attorney General shall submit to the
Permanent Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of the Senate
a report on the access provided to the Federal Bureau of Investigation,
on a voluntary basis at the request of the Bureau, to tangible things
(including books, records, papers, documents, and other items) for
purposes of investigations described by section 501(a)(1) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(a)(1)).
(b) Elements.--The report required by subsection (a) shall include
the following:
(1) A description of the policies and procedures of the
Federal Bureau of Investigation for seeking access to things as
described in subsection (a).
(2) A description of the circumstance in which such access
is regularly sought.
(3) A description of the general frequency with which such
access is sought.
(4) A description of the general frequency with which a
request for such access is denied.
(5) An assessment of the success of the Bureau in obtaining
through such access information of value to investigations
described in subsection (a).
(c) Form.--The report required by subsection (a) shall be submitted
in unclassified form, but may include a classified annex.
Calendar No. 132
109th CONGRESS
1st Session
S. 1266
[Report No. 109-85]
_______________________________________________________________________
A BILL
To permanently authorize certain provisions of the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, to
reauthorize a provision of the Intelligence Reform and Terrorism
Prevention Act of 2004, to clarify certain definitions in the Foreign
Intelligence Surveillance Act of 1978, to provide additional
investigative tools necessary to protect the national security, and for
other purposes.
_______________________________________________________________________
June 16, 2005
Read twice and placed on the calendar
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