[Congressional Record: September 25, 2007 (Senate)]
[Page S12056-S12067]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. FEINGOLD (for himself, Mr. Sununu, Mr. Durbin, Ms.
Murkowski, Mr. Salazar, and Mr. Hagel):
S. 2088. A bill to place reasonable limitations on the use of
National Security Letters, and for other purposes; to the Committee on
the Judiciary.
Mr. FEINGOLD. I am pleased today to introduce the National Security
Reform Act of 2007, a bipartisan effort that has the support of
Senators who I respect a great deal, and with whom I have worked over
the years on the Patriot Act and other issues. It also has the support
of organizations and activists across the political spectrum.
This past spring, the Inspector General of the Justice Department
issued the results of a congressionally mandated audit, an audit that
examined the FBI's implementation of its dramatically expanded
authority under the USA PATRIOT Act to issue National Security Letters,
or NSLs. The Inspector General found, as he put it: ``widespread and
serious misuse of the FBI's national security letter authorities. In
many instances, the FBI's misuse of national security letters violated
NSL statutes, Attorney General Guidelines, or the FBI's own internal
policies.'' A subsequent internal audit conducted by the FBI itself
confirmed the IG's findings.
After the IG report came out, the Judiciary Committee heard from the
Inspector General himself, who described his conclusions in detail, and
from the FBI Director, who talked about some steps the FBI is taking in
response to the report.
I appreciate that the FBI agrees with the IG's conclusions and
recognizes that it needs to change the way it does business when it
comes to NSLs. But in my view, leaving it to the FBI to fix this
problem is not enough.
Unfortunately, Congress shares some responsibility for the FBI's
troubling implementation of these broad authorities. The FBI's
apparently lax attitude and in some cases grave misuse of these
potentially very intrusive authorities is attributable in no small part
to the USA PATRIOT Act. That flawed legislation greatly expanded the
NSL authorities, essentially granting the FBI a blank check to obtain
some very sensitive records about Americans, including people not under
any suspicion of wrong-doing, without judicial approval. Congress gave
the FBI very few rules to follow and failed to adequately remedy those
shortcomings when it considered the NSL statutes as part of the Patriot
Act reauthorization process.
This Inspector General report proves that ``trust us'' doesn't cut it
when it comes to the Government's power to obtain Americans' sensitive
business records--without a court order and without any suspicion that
they are tied to terrorism or espionage. It was a significant mistake
for Congress to grant the Government broad authorities and just keep
its fingers crossed that they wouldn't be misused.
Congress has the responsibility to put appropriate limits on
government authorities--limits that allow agents to actively pursue
criminals, terrorists and spies, but that also protect the privacy of
innocent Americans.
In addition, a Federal district court recently struck down one of the
new NSL statutes, as modified by the Patriot Act reauthorization
legislation enacted in 2006. The court found that a statutory provision
permitting the FBI to impose a permanent, blanket nondisclosure order
on recipients of NSLs violated the First Amendment.
Congress also has not provided sufficient privacy protections to
govern the related authority in Section 215 of the Patriot Act, which
permits the Government to obtain court orders for Americans' business
records under the Foreign Intelligence Surveillance Act. Often referred
to as the ``library'' provision, although it covers all types of
business records, Section 215 was one of
[[Page S12057]]
the most controversial provisions in the Patriot Act. Unfortunately,
Congress did not go nearly far enough in the reauthorization process in
addressing the very legitimate privacy and civil liberties concerns
that have been raised about this power, including with respect to the
low standard the Government has to meet to obtain a Section 215 order,
the entirely insufficient judicial review provisions, and the lack of
other procedural protections.
All of this is why a bipartisan group of Senators, three Democrats
and three Republicans, are introducing the National Security Letter
Reform Act of 2007.
The bill places new safeguards on the use of National Security
Letters and related Patriot Act authorities to protect against abuse.
It restricts the types of records that can be obtained without a court
order to those that are the least sensitive and private, and it ensures
that the FBI can only use NSLs to obtain information about individuals
with some nexus to a suspected terrorist or spy. It makes sure that the
FBI can no longer obtain the sensitive records of individuals three or
four times removed from a suspect, most of whom would be entirely
innocent.
It prevents the use of so-called ``exigent letters,'' which the IG
found the FBI was using in violation of the NSL statutes. It requires
additional congressional reporting on NSLs, and it requires the FBI to
establish a compliance program and tracking database for NSLs. It
requires the Attorney General to issue minimization and destruction
procedures for information obtained through NSLs, so that information
obtained about Americans is subject to enhanced protections and the FBI
does not retain information obtained in error.
On Section 215, the legislation establishes a standard of
individualized suspicion for obtaining a FISA business records order,
requiring that the government have reason to believe the records sought
relate to a suspected terrorist or spy or someone directly linked to a
suspected terrorist or spy, and it creates procedural protections to
prevent abuses. The bill also ensures robust, meaningful and
constitutionally sound judicial review of both National Security
Letters and Section 215 business records orders, and the gag orders
that accompany them.
This legislation is a measured, reasonable response to a serious
problem. The NSL authorities operate in secret. The Justice
Department's classified reports to Congress on the use of NSLs were
admittedly inaccurate. And when, during the reauthorization process,
Congress asked questions about how these authorities were being used,
we got empty assurances and platitudes that we now know were mistaken.
Oversight alone is not enough. Congress also must take corrective
action. The Inspector General report has shown both that the executive
branch cannot be trusted to exercise those powers without oversight and
that current statutory safeguards are inadequate. This National
Security Letter Reform Act is the answer.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 2088
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``National
Security Letter Reform Act of 2007'' or the ``NSL Reform Act
of 2007''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title and table of contents.
Sec. 2. National Security Letter authority for communications
subscriber records.
Sec. 3. National Security Letter authority for certain financial
records.
Sec. 4. National Security Letter authority for certain consumer report
records.
Sec. 5. Judicial review of National Security Letters.
Sec. 6. National Security Letter compliance program and tracking
database.
Sec. 7. Public reporting on National Security Letters.
Sec. 8. Sunset of expanded National Security Letter authorities.
Sec. 9. Privacy protections for section 215 business records orders.
Sec. 10. Judicial review of section 215 orders.
Sec. 11. Resources for FISA applications.
Sec. 12. Enhanced protections for emergency disclosures.
Sec. 13. Clarification regarding data retention.
Sec. 14. Least intrusive means.
SEC. 2. NATIONAL SECURITY LETTER AUTHORITY FOR COMMUNICATIONS
SUBSCRIBER RECORDS.
Section 2709 of title 18, United States Code, is amended to
read as follows:
``Sec. 2709. National Security Letter for communications
subscriber records
``(a) Authorization.--
``(1) In general.--The Director of the Federal Bureau of
Investigation, or a designee of the Director whose rank shall
be no lower than Deputy Assistant Director at Bureau
headquarters or Special Agent in Charge of a Bureau field
office, may issue in writing and cause to be served on a wire
or electronic communications service provider a National
Security Letter requiring the production of the following:
``(A) The name of the customer or subscriber.
``(B) The address of the customer or subscriber.
``(C) The length of the provision of service by such
provider to the customer or subscriber (including start date)
and the types of service utilized by the customer or
subscriber.
``(D) The telephone number or instrument number, or other
subscriber number or identifier, of the customer or
subscriber, including any temporarily assigned network
address.
``(E) The means and sources of payment for such service
(including any credit card or bank account number).
``(F) Information about any service or merchandise orders,
including any shipping information and vendor locations.
``(G) The name and contact information, if available, of
any other wire or electronic communications service providers
facilitating the communications of the customer or
subscriber.
``(2) Limitation.--A National Security Letter issued
pursuant to this section shall not require the production of
local or long distance telephone records or electronic
communications transactional information not listed in
paragraph (1).
``(b) Requirements.--
``(1) In general.--A National Security Letter shall be
issued under subsection (a) only where--
``(A) the records sought are relevant to an ongoing,
authorized and specifically identified national security
investigation (other than a threat assessment); and
``(B) there are specific and articulable facts providing
reason to believe that the records--
``(i) pertain to a suspected agent of a foreign power; or
``(ii) pertain to an individual who has been in contact
with, or otherwise directly linked to, a suspected agent of a
foreign power who is the subject of an ongoing, authorized
and specifically identified national security investigation
(other than a threat assessment); or
``(iii) pertain to the activities of a suspected agent of a
foreign power, where those activities are the subject of an
ongoing, authorized and specifically identified national
security investigation (other than a threat assessment), and
obtaining the records is the least intrusive means that could
be used to identify persons believed to be involved in such
activities.
``(2) Investigation.--For purposes of this section, an
ongoing, authorized, and specifically identified national
security investigation--
``(A) shall be conducted under guidelines approved by the
Attorney General and Executive Order 12333 (or successor
order); and
``(B) shall not be conducted with respect to a United
States person upon the basis of activities protected by the
first amendment to the Constitution of the United States.
``(3) Contents.--A National Security Letter issued under
subsection (a) shall--
``(A) describe the records to be produced with sufficient
particularity to permit them to be fairly identified;
``(B) include the date on which the records must be
provided, which shall allow a reasonable period of time
within which the records can be assembled and made available;
``(C) provide clear and conspicuous notice of the
principles and procedures set forth in this section,
including notification of any nondisclosure requirement under
subsection (c) and a statement laying out the rights and
responsibilities of the recipient; and
``(D) not contain any requirement that would be held to be
unreasonable if contained in a subpoena duces tecum issued by
a court of the United States in aid of a grand jury
investigation or require the production of 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.
``(4) Retention of records.--The Director of the Federal
Bureau of Investigation shall direct that a signed copy of
each National Security Letter issued under this section be
retained in the database required to be established by
section 6 of the National Security Letter Reform Act of 2007.
``(c) Prohibition of Certain Disclosure.--
``(1) In general.--
``(A) In general.--If a certification is issued pursuant to
subparagraph (B), no wire
[[Page S12058]]
or electronic communication service provider, or officer,
employee, or agent thereof, who receives a National Security
Letter under this section, shall disclose to any person the
particular information specified in such certification for 30
days after receipt of such National Security Letter.
``(B) Certification.--The requirements of subparagraph (A)
shall apply if the Director of the Federal Bureau of
Investigation, or a designee of the Director whose rank shall
be no lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in charge of a Bureau field
office, certifies that--
``(i) there is reason to believe that disclosure of
particular information about the existence or contents of a
National Security Letter issued under this section will
result in--
``(I) endangering the life or physical safety of any
person;
``(II) flight from prosecution;
``(III) destruction of or tampering with evidence;
``(IV) intimidation of potential witnesses;
``(V) interference with diplomatic relations; or
``(VI) otherwise seriously endangering the national
security of the United States by alerting a target, a
target's associates, or the foreign power of which the target
is an agent, of the Government's interest in the target; and
``(ii) the nondisclosure requirement is narrowly tailored
to address the specific harm identified by the Government.
``(C) Termination.--If the facts supporting a nondisclosure
requirement cease to exist prior to the 30-day period
specified in subparagraph (A), an appropriate official of the
Federal Bureau of Investigation shall promptly notify the
wire or electronic service provider, or officer, employee, or
agent thereof, subject to the nondisclosure requirement that
such nondisclosure requirement is no longer in effect.
``(2) Exception.--
``(A) In general.--A wire or electronic communication
service provider, or officer, employee, or agent thereof, who
receives a National Security Letter under this section may
disclose information otherwise subject to any applicable
nondisclosure requirement to--
``(i) those persons to whom disclosure is necessary in
order to comply with a National Security Letter under this
section;
``(ii) an attorney in order to obtain legal advice or
assistance regarding such National Security Letter; or
``(iii) other persons as permitted by the Director of the
Federal Bureau of Investigation or the designee of the
Director.
``(B) Nondisclosure requirement.--A person to whom
disclosure is made pursuant to subparagraph (A) shall be
subject to the nondisclosure requirements applicable to a
person to whom a National Security Letter is directed under
this section in the same manner as such person.
``(C) Notice.--Any recipient who discloses to a person
described in subparagraph (A) information otherwise subject
to a nondisclosure requirement shall inform such person of
the applicable nondisclosure requirement.
``(3) Extension.--The Director of the Federal Bureau of
Investigation, or a designee of the Director whose rank shall
be no lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge of a Bureau field
office, may apply for an order prohibiting disclosure of
particular information about the existence or contents of a
National Security Letter issued under this section for an
additional 180 days.
``(4) Jurisdiction.--An application for an order pursuant
to this subsection shall be filed in the district court of
the United States in any district within which the authorized
investigation that is the basis for a request pursuant to
this section is being conducted.
``(5) Application contents.--An application for an order
pursuant to this subsection shall include--
``(A) a statement of specific and articulable facts giving
the applicant reason to believe that disclosure of particular
information about the existence or contents of a National
Security Letter issued under this section will result in--
``(i) endangering the life or physical safety of any
person;
``(ii) flight from prosecution;
``(iii) destruction of or tampering with evidence;
``(iv) intimidation of potential witnesses;
``(v) interference with diplomatic relations; or
``(vi) otherwise seriously endangering the national
security of the United States by alerting a target, a
target's associates, or the foreign power of which the target
is an agent, of the Government's interest in the target; and
``(B) an explanation of how the nondisclosure requirement
is narrowly tailored to address the specific harm identified
by the Government.
``(6) Standard.--The court may issue an ex parte order
pursuant to this subsection if the court determines--
``(A) there is reason to believe that disclosure of
particular information about the existence or contents of a
National Security Letter issued under this section will
result in--
``(i) endangering the life or physical safety of any
person;
``(ii) flight from prosecution;
``(iii) destruction of or tampering with evidence;
``(iv) intimidation of potential witnesses;
``(v) interference with diplomatic relations; or
``(vi) otherwise seriously endangering the national
security of the United States by alerting a target, a
target's associates, or the foreign power of which the target
is an agent, of the Government's interest in the target; and
``(B) the nondisclosure requirement is narrowly tailored to
address the specific harm identified by the Government.
``(7) Renewal.--An order under this subsection may be
renewed for additional periods of up to 180 days upon another
application meeting the requirements of paragraph (5) and a
determination by the court that the circumstances described
in paragraph (6) continue to exist.
``(8) Termination.--If the facts supporting a nondisclosure
requirement cease to exist prior to the expiration of the
time period imposed by a court for that nondisclosure
requirement, an appropriate official of the Federal Bureau of
Investigation shall promptly notify the court, and the court
shall terminate such nondisclosure requirement.
``(d) Minimization and Destruction.--
``(1) In general.--Not later than 180 days after the
enactment of this section, the Attorney General shall
establish minimization and destruction procedures governing
the retention and dissemination by the Federal Bureau of
Investigation of any records received by the Federal Bureau
of Investigation in response to a National Security Letter
under this section.
``(2) Definition.--In this section, the term `minimization
and destruction procedures' means--
``(A) specific procedures that are reasonably designed in
light of the purpose and technique of a National Security
Letter, to minimize the retention, and prohibit the
dissemination, of nonpublicly available information
concerning unconsenting United States persons consistent with
the need of the United States to obtain, produce, and
disseminate foreign intelligence information, including
procedures to ensure that information obtained pursuant to a
National Security Letter regarding persons no longer of
interest in an authorized investigation, or information
obtained pursuant to a National Security Letter that does not
meet the requirements of this section or is outside the scope
of such National Security Letter, is returned or destroyed;
``(B) procedures that require that nonpublicly available
information, which is not foreign intelligence information,
as defined in section 101(e)(1) of the Foreign Intelligence
Surveillance Act of 1978, shall not be disseminated in a
manner that identifies any United States person, without such
person's consent, unless such person's identity is necessary
to understand foreign intelligence information or assess its
importance; and
``(C) notwithstanding subparagraphs (A) and (B), procedures
that allow for the retention and dissemination of information
that is evidence of a crime which has been, is being, or is
about to be committed and that is to be retained or
disseminated for law enforcement purposes.
``(e) Requirement That Certain Congressional Bodies Be
Informed.--
``(1) In general.--On a semiannual basis the Director of
the Federal Bureau of Investigation shall fully inform the
Permanent Select Committee on Intelligence of the Senate and
the Select Committee on Intelligence of the House of
Representatives, and the Committee on the Judiciary of the
Senate and the Committee on the Judiciary of the House of
Representatives, concerning all requests made under this
section.
``(2) Contents.--The report required by paragraph (1) shall
include--
``(A) a description of the minimization and destruction
procedures adopted by the Attorney General pursuant to
subsection (d), including any changes to such minimization
procedures previously adopted by the Attorney General;
``(B) a summary of the court challenges brought pursuant to
section 3511 of title 18, United States Code, by recipients
of National Security Letters;
``(C) a description of the extent to which information
obtained with National Security Letters under this section
has aided intelligence investigations and an explanation of
how such information has aided such investigations; and
``(D) a description of the extent to which information
obtained with National Security Letters under this section
has aided criminal prosecutions and an explanation of how
such information has aided such prosecutions.
``(f) Use of Information.--
``(1) In general.--
``(A) Consent.--Any information acquired from a National
Security Letter pursuant to this section concerning any
United States person may be used and disclosed by Federal
officers and employees without the consent of the United
States person only in accordance with the minimization and
destruction procedures required by this section.
``(B) Lawful purpose.--No information acquired from a
National Security Letter pursuant to this section may be used
or disclosed by Federal officers or employees except for
lawful purposes.
``(2) Disclosure for law enforcement purposes.--No
information acquired pursuant to this section shall be
disclosed for law enforcement purposes unless such disclosure
[[Page S12059]]
is accompanied by a statement that such information, or any
information derived therefrom, may only be used in a criminal
proceeding with the advance authorization of the Attorney
General.
``(3) Notification of intended disclosure by the united
states.--Whenever the United States intends to enter into
evidence or otherwise use or disclose in any trial, hearing,
or other proceeding in or before any court, department,
officer, agency, regulatory body, or other authority of the
United States against an aggrieved person any information
obtained or derived from a National Security Letter pursuant
to this section, the United States shall, before the trial,
hearing, or other proceeding or at a reasonable time before
an effort to so disclose or so use this information or submit
it in evidence, notify the aggrieved person and the court or
other authority in which the information is to be disclosed
or used that the United States intends to so disclose or so
use such information.
``(4) Notification of intended disclosure by state or
political subdivision.--Whenever any State or political
subdivision thereof intends to enter into evidence or
otherwise use or disclose in any trial, hearing, or other
proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the State or
political subdivision thereof against an aggrieved person any
information obtained or derived from a National Security
Letter pursuant to this section, the State or political
subdivision thereof shall notify the aggrieved person, the
court or other authority in which the information is to be
disclosed or used, and the Attorney General that the State or
political subdivision thereof intends to so disclose or so
use such information.
``(5) Motion to suppress.--
``(A) In general.--Any aggrieved person against whom
evidence obtained or derived from a National Security Letter
pursuant to this section is to be, or has been, introduced or
otherwise used or disclosed in any trial, hearing, or other
proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the United
States, or a State or political subdivision thereof, may move
to suppress the evidence obtained or derived from the
National Security Letter, as the case may be, on the grounds
that--
``(i) the information was acquired in violation of the
Constitution or laws of the United States; or
``(ii) the National Security Letter was not issued in
conformity with the requirements of this section.
``(B) Timing.--A motion under subparagraph (A) shall be
made before the trial, hearing, or other proceeding unless
there was no opportunity to make such a motion or the
aggrieved person concerned was not aware of the grounds of
the motion.
``(6) Judicial review.--
``(A) In general.--Whenever--
``(i) a court or other authority is notified pursuant to
paragraph (3) or (4);
``(ii) a motion is made pursuant to paragraph (5); or
``(iii) any motion or request is made by an aggrieved
person pursuant to any other statute or rule of the United
States or any State before any court or other authority of
the United States or any State to--
``(I) discover or obtain materials relating to a National
Security Letter issued pursuant to this section; or
``(II) discover, obtain, or suppress evidence or
information obtained or derived from a National Security
Letter issued pursuant to this section;
the United States district court or, where the motion is made
before another authority, the United States district court in
the same district as the authority shall, notwithstanding any
other provision of law and if the Attorney General files an
affidavit under oath that disclosure would harm the national
security of the United States, review in camera the materials
as may be necessary to determine whether the request was
lawful.
``(B) Disclosure.--In making a determination under
subparagraph (A), 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 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.) or
other applicable law, portions of the application, order, or
other related materials, or evidence or information obtained
or derived from the order.
``(7) Effect of determination of lawfulness.--
``(A) Unlawful orders.--If the United States district court
determines pursuant to paragraph (6) that the National
Security Letter was not in compliance with the Constitution
or laws of the United States, the court may, in accordance
with the requirements of law, suppress the evidence which was
unlawfully obtained or derived from the National Security
Letter or otherwise grant the motion of the aggrieved person.
``(B) Lawful orders.--If the court determines that the
National Security Letter was lawful, it may deny the motion
of the aggrieved person except to the extent that due process
requires discovery or disclosure.
``(8) Binding final orders.--Orders granting motions or
requests under paragraph (6), decisions under this section
that a National Security Letter was not lawful, and orders of
the United States district court requiring review or granting
disclosure of applications, orders, or other related
materials shall be final orders and binding upon all courts
of the United States and the several States except a United
States court of appeals or the Supreme Court.
``(g) Definitions.--As used in this section--
``(1) the term `agent of a foreign power' has the meaning
given such term by section 101(b) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801(b));
``(2) the term `aggrieved person' means a person whose
information or records were sought or obtained under this
section; and
``(3) the term `foreign power' has the meaning given such
term by section 101(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801(a)).''.
SEC. 3. NATIONAL SECURITY LETTER AUTHORITY FOR CERTAIN
FINANCIAL RECORDS.
Section 1114 of the Right to Financial Privacy Act of 1978
(12 U.S.C. 3414) is amended to read as follows:
``SEC. 1114. NATIONAL SECURITY LETTER FOR CERTAIN FINANCIAL
RECORDS.
``(a) Authorization.--
``(1) In general.--The Director of the Federal Bureau of
Investigation, or a designee of the Director whose rank shall
be no lower than Deputy Assistant Director at Bureau
headquarters or Special Agent in Charge of a Bureau field
office, may issue in writing and cause to be served on a
financial institution, a National Security Letter requiring
the production of--
``(A) the name of the customer or entity with whom the
financial institution has a financial relationship;
``(B) the address of the customer or entity with whom the
financial institution has a financial relationship;
``(C) the length of time during which the customer or
entity has had an account or other financial relationship
with the financial institution (including the start date) and
the type of account or other financial relationship; and
``(D) any account number or other unique identifier
associated with the financial relationship of the customer or
entity to the financial institution.
``(2) Limitation.--A National Security Letter issued
pursuant to this section may require the production only of
records identified in subparagraphs (A) through (D) of
paragraph (1).
``(b) National Security Letter Requirements.--
``(1) In general.--A National Security Letter issued under
this section shall be subject to the requirements of
subsections (b) through (g) of section 2709 of title 18,
United States Code, in the same manner and to the same extent
as those provisions apply with respect to wire and electronic
communication service providers.
``(2) Reporting.--For purposes of this section, the
reporting requirement in section 2709(e) of title 18, United
States Code, shall also require informing the Committee on
Banking, Housing, and Urban Affairs of the Senate and the
Committee on Financial Services of the House of
Representatives.
``(c) Definition of `Financial Institution'.--For purposes
of this section, section 1115, and section 1117, insofar as
they relate to the operation of this section, the term
`financial institution' has the same meaning as in
subsections (a)(2) and (c)(1) of section 5312 of title 31,
except that, for purposes of this section, such term shall
include only such a financial institution any part of which
is located inside any State or territory of the United
States, the District of Columbia, Puerto Rico, Guam, American
Samoa, the Commonwealth of the Northern Mariana Islands, or
the United States Virgin Islands.''.
SEC. 4. NATIONAL SECURITY LETTER AUTHORITY FOR CERTAIN
CONSUMER REPORT RECORDS.
Section 626 of the Fair Credit Reporting Act (15 U.S.C.
1681u) is amended--
(1) by striking the section heading and inserting the
following:
``Sec. 626. National Security Letters for certain consumer
report records'';
(2) by striking subsections (a) through (d) and inserting
the following:
``(a) Authorization.--
``(1) In general.--The Director of the Federal Bureau of
Investigation, or a designee of the Director whose rank shall
be no lower than Deputy Assistant Director at Bureau
headquarters or Special Agent in Charge of a Bureau field
office, may issue in writing and cause to be served on a
consumer reporting agency a National Security Letter
requiring the production of--
``(A) the name of a consumer;
``(B) the current and former address of a consumer;
``(C) the current and former places of employment of a
consumer; and
``(D) the names and addresses of all financial institutions
(as that term is defined in section 1101 of the Right to
Financial Privacy Act of 1978) at which a consumer maintains
or has maintained an account, to the extent that such
information is in the files of the consumer reporting agency.
``(2) Limitation.--A National Security Letter issued
pursuant to this section may not require the production of a
consumer report.
``(b) National Security Letter Requirements.--
``(1) In general.--A National Security Letter issued under
this section shall be subject to the requirements of
subsections (b) through (g) of section 2709 of title 18,
United States Code, in the same manner and to the
[[Page S12060]]
same extent as those provisions apply with respect to wire
and electronic communication service providers.
``(2) Reporting.--For purposes of this section, the
reporting requirement in section 2709(e) of title 18, United
States Code, shall also require informing the Committee on
Banking, Housing, and Urban Affairs of the Senate and the
Committee on Financial Services of the House of
Representatives.'';
(3) by striking subsections (f) through (h); and
(4) by redesignating subsections (e) and (i) through (m) as
subsections (c) through (h), respectively.
SEC. 5. JUDICIAL REVIEW OF NATIONAL SECURITY LETTERS.
(a) Review of Nondisclosure Orders.--Section 3511(b) of
title 18, United States Code, is amended to read as follows:
``(b) Nondisclosure.--
``(1) In general.--The recipient of a request for records
or other information under section 2709 of this title,
section 626 of the Fair Credit Reporting Act, section 1114 of
the Right to Financial Privacy Act, or section 802(a) of the
National Security Act of 1947, may petition any court
described in subsection (a) to modify or set aside a
nondisclosure requirement imposed in connection with such a
request. Such petition shall specify each ground upon which
the petitioner relies in seeking relief, and may be based
upon any failure of the nondisclosure requirement to comply
with the provisions of section 2709 of this title, section
626 of the Fair Credit Reporting Act, section 1114 of the
Right to Financial Privacy Act, or section 802(a) of the
National Security Act of 1947, or upon any constitutional or
other legal right or privilege of such person.
``(2) Standard.--The court shall modify or set aside the
nondisclosure requirement unless the court determines that--
``(A) there is a reason to believe that disclosure of the
information subject to the nondisclosure requirement will
result in--
``(i) endangering the life or physical safety of any
person;
``(ii) flight from prosecution;
``(iii) destruction of or tampering with evidence;
``(iv) intimidation of potential witnesses;
``(v) interference with diplomatic relations; or
``(vi) otherwise seriously endangering the national
security of the United States by alerting a target, a
target's associates, or the foreign power of which the target
is an agent, of the Government's interest in the target; and
``(B) the nondisclosure requirement is narrowly tailored to
address the specific harm identified by the Government.''.
(b) Disclosure.--Section 3511(d) of title 18, United States
Code, is amended to read as follows:
``(d) Disclosure.--In making determinations under this
section, 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 to the
petitioner, the counsel of the petitioner, or both, under the
procedures and standards provided in the Classified
Information Procedures Act (18 U.S.C. App.) or other
applicable law, portions of the application, National
Security Letter, or other related materials.''.
(c) Conforming Amendments.--Section 3511 of title 18,
United States Code, is amended--
(1) in subsection (a), by--
(A) inserting after ``(a)'' the following ``Request.--'';
(B) striking ``2709(b)'' and inserting ``2709'';
(C) striking ``626(a) or (b) or 627(a)'' and inserting
``626''; and
(D) striking ``1114(a)(5)(A)'' and inserting ``1114''; and
(2) in subsection (c), by--
(A) inserting after ``(c)'' the following ``Failure To
Comply.--'';
(B) by striking ``2709(b)'' and inserting ``2709'';
(C) by striking ``626(a) or (b) or 627(a)'' and inserting
``626''; and
(D) by striking ``1114(a)(5)(A)'' and inserting ``1114''. .
(d) Repeal.--Section 3511(e) of title 18, United States
Code, is repealed.
SEC. 6. NATIONAL SECURITY LETTER COMPLIANCE PROGRAM AND
TRACKING DATABASE.
(a) Compliance Program.--The Director of the Federal Bureau
of Investigation shall establish a program to ensure
compliance with the amendments made by sections 2, 3, and 4
of this Act.
(b) Tracking Database.--The compliance program required by
subsection (a) shall include the establishment of a database,
the purpose of which shall be to track all National Security
Letters issued by the Federal Bureau of Investigation under
section 1114 of the Right to Financial Privacy Act of 1978
(12 U.S.C. 3414), section 626 of the Fair Credit Reporting
Act (15 U.S.C. 1681u), and section 2709 of title 18, United
States Code.
(c) Information.--The database required by this section
shall include--
(1) a signed copy of each National Security Letter;
(2) the date the National Security Letter was issued and
for what type of information;
(3) whether the National Security Letter seeks information
regarding a United States person or non-United States person;
(4) the ongoing, authorized, and specifically identified
national security investigation (other than a threat
assessment) to which the National Security Letter relates;
(5) whether the National Security Letter seeks information
regarding an individual who is the subject of such
investigation;
(6) when the information requested was received and, if
applicable, when it was destroyed; and
(7) whether the information gathered was disclosed for law
enforcement purposes.
SEC. 7. PUBLIC REPORTING ON NATIONAL SECURITY LETTERS.
Section 118(c) of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (Public Law 109-177) is amended--
(1) in paragraph (1)--
(A) by striking ``concerning different United States
persons''; and
(B) in subparagraph (A), by striking ``, excluding the
number of requests for subscriber information'';
(2) by redesignating paragraph (2) as paragraph (3); and
(3) by inserting after paragraph (1) the following:
``(2) Content.--The report required by this subsection
shall include the total number of requests described in
paragraph (1) requiring disclosure of information
concerning--
``(A) United States persons;
``(B) non-United States persons;
``(C) persons who are the subjects of authorized national
security investigations; and
``(D) persons who are not the subjects of authorized
national security investigations.''.
SEC. 8. SUNSET OF EXPANDED NATIONAL SECURITY LETTER
AUTHORITIES.
Subsection 102(b) of Public Law 109-177 is amended to read
as follows:
``(b) Sections 206, 215, 358(g), 505 Sunset.--
``(1) In general.--Effective December 31, 2009, the
following provisions are amended to read as they read on
October 25, 2001--
``(A) sections 501, 502, and 105(c)(2) of the Foreign
Intelligence Surveillance Act of 1978;
``(B) section 2709 of title 18, United States Code;
``(C) sections 626 and 627 of the Fair Credit Reporting Act
(15 U.S.C. 1681u, 1681v); and
``(D) section 1114 of the Right to Financial Privacy Act
(12 U.S.C. 3414).
``(2) Exception.--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, or with respect to any particular offense or
potential offense that began or occurred before the date on
which such provisions cease to have effect, such provisions
shall continue in effect.''.
SEC. 9. PRIVACY PROTECTIONS FOR SECTION 215 BUSINESS RECORDS
ORDERS.
(a) In General.--Section 501(b) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861(b)(2)) is amended--
(1) in paragraph (1)(B), by striking ``and'' after the
semicolon;
(2) in paragraph (2)--
(A) in subparagraph (A), by striking ``, such things being
presumptively'' through the end of the subparagraph and
inserting a semicolon;
(B) by redesignating subparagraph (B) as subparagraph (C)
and striking the period at the end and inserting ``; and'';
and
(C) by inserting after subparagraph (A) the following:
``(B) a statement of specific and articulable facts
providing reason to believe that the tangible things sought--
``(i) pertain to a suspected agent of a foreign power; or
``(ii) pertain to an individual who has been in contact
with, or otherwise directly linked to, a suspected agent of a
foreign power if the circumstances of that contact or link
suggest that the records sought will be relevant to an
ongoing, authorized and specifically identified national
security investigation (other than a threat assessment) of
that suspected agent of a foreign power; and''; and
(3) by inserting at the end the following:
``(3) if the applicant is seeking a nondisclosure
requirement described in subsection (d), shall include--
``(A) a statement of specific and articulable facts
providing reason to believe that disclosure of particular
information about the existence or contents of the order
requiring the production of tangible things under this
section will result in--
``(i) endangering the life or physical safety of any
person;
``(ii) flight from prosecution;
``(iii) destruction of or tampering with evidence;
``(iv) intimidation of potential witnesses;
``(v) interference with diplomatic relations; or
``(vi) otherwise seriously endangering the national
security of the United States by alerting a target, a
target's associates, or the foreign power of which the target
is an agent, of the Government's interest in the target; and
``(B) an explanation of how the nondisclosure requirement
is narrowly tailored to address the specific harm identified
by the Government.''.
(b) Order.--Section 501(c) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861(c)) is amended--
(1) in paragraph (1), by--
(A) striking ``subsections (a) and (b)'' and inserting
``subsection (a) and paragraphs (1) and (2) of subsection
(b)''; and
(B) inserting at the end the following: ``If the judge
finds that the requirements of subsection (b)(3) have been
met, such order shall include a nondisclosure requirement
subject
[[Page S12061]]
to the principles and procedures described in subsection
(d)''; and
(2) in paragraph (2)(C), by inserting before the semicolon
``, if applicable''.
(c) Nondisclosure.--Section 501(d) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(d)) is
amended to read as follows:
``(d) Nondisclosure.--
``(1) In general.--No person who receives an order under
subsection (c) that contains a nondisclosure requirement
shall disclose to any person the particular information
specified in such nondisclosure requirement for 180 days
after receipt of such order.
``(2) Exception.--
``(A) Disclosure.--A person who receives an order under
subsection (c) that contains a nondisclosure requirement may
disclose information otherwise subject to any applicable
nondisclosure requirement to--
``(i) those persons to whom disclosure is necessary in
order to comply with an order under this section;
``(ii) an attorney in order to obtain legal advice or
assistance regarding such order; or
``(iii) other persons as permitted by the Director of the
Federal Bureau of Investigation or the designee of the
Director.
``(B) Application.--A person to whom disclosure is made
pursuant to subparagraph (A) shall be subject to the
nondisclosure requirements applicable to a person to whom an
order is directed under this section in the same manner as
such person.
``(C) Notification.--Any person who discloses to a person
described in subparagraph (A) information otherwise subject
to a nondisclosure requirement shall notify such person of
the applicable nondisclosure requirement.
``(3) Extension.--The Director of the Federal Bureau of
Investigation, or a designee of the Director (whose rank
shall be no lower than Assistant Special Agent in Charge),
may apply for renewals for the prohibition on disclosure of
particular information about the existence or contents of an
order requiring the production of tangible things under this
section for additional periods of up to 180 days each. Such
nondisclosure requirement shall be renewed if a court having
jurisdiction pursuant to paragraph (4) determines that the
application meets the requirements of subsection (b)(3).
``(4) Jurisdiction.--An application for a renewal pursuant
to this subsection shall be made to--
``(A) a judge of the court established under section
103(a); or
``(B) a United States Magistrate Judge under chapter 43 of
title 28, who is publicly designated by the Chief Justice of
the United States to have the power to hear applications and
grant orders for the production of tangible things under this
section on behalf of a judge of the court established under
section 103(a).''.
(d) Use of Information.--Section 501(h) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is
amended to read as follows:
``(h) Use of Information.--
``(1) In general.--
``(A) Consent.--Any tangible things or information acquired
from an order pursuant to this section concerning any United
States person may be used and disclosed by Federal officers
and employees without the consent of the United States person
only in accordance with the minimization procedures required
by this section.
``(B) Use and disclosure.--No tangible things or
information acquired from an order pursuant to this section
may be used or disclosed by Federal officers or employees
except for lawful purposes.
``(2) Disclosure for law enforcement purposes.--No tangible
things or information acquired pursuant to this section shall
be disclosed for law enforcement purposes unless such
disclosure is accompanied by a statement that such tangible
things or information, or any information derived therefrom,
may only be used in a criminal proceeding with the advance
authorization of the Attorney General.
``(3) Notification of intended disclosure by the united
states.--Whenever the United States intends to enter into
evidence or otherwise use or disclose in any trial, hearing,
or other proceeding in or before any court, department,
officer, agency, regulatory body, or other authority of the
United States against an aggrieved person any tangible things
or information obtained or derived from an order pursuant to
this section, the United States shall, before the trial,
hearing, or other proceeding or at a reasonable time before
an effort to so disclose or so use the tangible things or
information or submit them in evidence, notify the aggrieved
person and the court or other authority in which the tangible
things or information are to be disclosed or used that the
United States intends to so disclose or so use such tangible
things or information.
``(4) Notification of intended disclosure by state or
political subdivision.--Whenever any State or political
subdivision thereof intends to enter into evidence or
otherwise use or disclose in any trial, hearing, or other
proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the State or
political subdivision thereof against an aggrieved person any
tangible things or information obtained or derived from an
order pursuant to this section, the State or political
subdivision thereof shall notify the aggrieved person, the
court or other authority in which the tangible things or
information are to be disclosed or used, and the Attorney
General that the State or political subdivision thereof
intends to so disclose or so use such tangible things or
information.
``(5) Motion to suppress.--
``(A) In general.--Any aggrieved person against whom
evidence obtained or derived from an order pursuant to this
section is to be, or has been, introduced or otherwise used
or disclosed in any trial, hearing, or other proceeding in or
before any court, department, officer, agency, regulatory
body, or other authority of the United States, or a State or
political subdivision thereof, may move to suppress the
evidence obtained or derived from the order, as the case may
be, on the grounds that--
``(i) the tangible things or information were acquired in
violation of the Constitution or laws of the United States;
or
``(ii) the order was not issued in conformity with the
requirements of this section.
``(B) Timing.--A motion under subparagraph (A) shall be
made before the trial, hearing, or other proceeding unless
there was no opportunity to make such a motion or the
aggrieved person concerned was not aware of the grounds of
the motion.
``(6) Judicial review.--
``(A) In general.--Whenever--
``(i) a court or other authority is notified pursuant to
paragraph (3) or (4);
``(ii) a motion is made pursuant to paragraph (5); or
``(iii) any motion or request is made by an aggrieved
person pursuant to any other statute or rule of the United
States or any State before any court or other authority of
the United States or any State to--
``(I) discover or obtain applications, orders, or other
materials relating to an order issued pursuant to this
section; or
``(II) discover, obtain, or suppress evidence or
information obtained or derived from an order issued pursuant
to this section;
the United States district court or, where the motion is made
before another authority, the United States district court in
the same district as the authority shall, notwithstanding any
other provision of law and if the Attorney General files an
affidavit under oath that disclosure would harm the national
security of the United States, review in camera the
application, order, and such other related materials as may
be necessary to determine whether the order was lawfully
authorized and served.
``(B) Disclosure.--In making a determination under
subparagraph (A), 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 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.) or
other applicable law, portions of the application, order, or
other related materials, or evidence or information obtained
or derived from the order.
``(7) Effect of determination of lawfulness.--
``(A) Unlawful orders.--If the United States district court
determines pursuant to paragraph (6) that the order was not
authorized or served in compliance with the Constitution or
laws of the United States, the court may, in accordance with
the requirements of law, suppress the evidence which was
unlawfully obtained or derived from the order or otherwise
grant the motion of the aggrieved person.
``(B) Lawful orders.--If the court determines that the
order was lawfully authorized and served, it may deny the
motion of the aggrieved person except to the extent that due
process requires discovery or disclosure.
``(8) Binding final orders.--Orders granting motions or
requests under paragraph (6), decisions under this section
that an order was not lawfully authorized or served, and
orders of the United States district court requiring review
or granting disclosure of applications, orders, or other
related materials shall be final orders and binding upon all
courts of the United States and the several States except a
United States court of appeals or the Supreme Court.''.
(e) Definition.--Title V of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended
by adding at the end the following:
``SEC. 503. DEFINITIONS.
``In this title, the following definitions apply:
``(1) In general.--Except as provided in this section,
terms used in this title that are also used in title I shall
have the meanings given such terms by section 101.
``(2) Aggrieved person.--The term `aggrieved person' means
any person whose tangible things or information were acquired
pursuant to an order under this title.''.
SEC. 10. JUDICIAL REVIEW OF SECTION 215 ORDERS.
Section 501(f) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1861) is amended to read as follows:
``(f) Judicial Review.--
``(1) Order for production.--Not later than 20 days after
the service upon any person of an order pursuant to
subsection (c), or at any time before the return date
specified in the order, whichever period is shorter, such
person may file, in the court established under section
103(a) or in the district court of the United States for the
judicial district within which such person resides, is found,
or transacts business, a petition for
[[Page S12062]]
such court to modify or set aside such order. The time
allowed for compliance with the order in whole or in part as
deemed proper and ordered by the court shall not run during
the pendency of such petition in the court. Such petition
shall specify each ground upon which the petitioner relies in
seeking relief, and may be based upon any failure of such
order to comply with the provisions of this section or upon
any constitutional or other legal right or privilege of such
person.
``(2) Nondisclosure order.--
``(A) In general.--A person prohibited from disclosing
information under subsection (d) may file, in the courts
established by section 103(a) or in the district court of the
United States for the judicial district within which such
person resides, is found, or transacts business, a petition
for such court to set aside the nondisclosure requirement.
Such petition shall specify each ground upon which the
petitioner relies in seeking relief, and may be based upon
any failure of the nondisclosure requirement to comply with
the provisions of this section or upon any constitutional or
other legal right or privilege of such person.
``(B) Standard.--The court shall modify or set aside the
nondisclosure requirement unless the court determines that--
``(i) there is reason to believe that disclosure of the
information subject to the nondisclosure requirement will
result in--
``(I) endangering the life or physical safety of any
person;
``(II) flight from prosecution;
``(III) destruction of or tampering with evidence;
``(IV) intimidation of potential witnesses;
``(V) interference with diplomatic relations; or
``(VI) otherwise seriously endangering the national
security of the United States by alerting a target, a
target's associates, or the foreign power of which the target
is an agent, of the Government's interest in the target; and
``(ii) the nondisclosure requirement is narrowly tailored
to address the specific harm identified by the Government.
``(3) Rulemaking.--
``(A) In general.--Not later than 180 days after the date
of enactment of the National Security Letter Reform Act of
2007, the courts established pursuant to section 103(a) shall
establish such rules and procedures and take such actions as
are reasonably necessary to administer their responsibilities
under this subsection.
``(B) Reporting.--Not later than 30 days after promulgating
rules and procedures under subparagraph (A), the courts
established pursuant to section 103(a) shall transmit a copy
of the rules and procedures, unclassified to the greatest
extent possible (with a classified annex, if necessary), to
the Committee on the Judiciary and the Select Committee on
Intelligence of the Senate and the Committee on the Judiciary
and the Permanent Select Committee on Intelligence of the
House of Representatives.
``(4) Disclosures to petitioners.--In making determinations
under this subsection, 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
to the petitioner, the counsel of the petitioner, or both,
under the procedures and standards provided in the Classified
Information Procedures Act (18 U.S.C. App.) or other
applicable law, portions of the application, order, or other
related materials.''.
SEC. 11. RESOURCES FOR FISA APPLICATIONS.
(a) Electronic Filing.--
(1) In general.--The Department of Justice shall establish
a secure electronic system for the submission of documents
and other information to the court established under section
103(a) of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1803) relating to applications for orders under
chapter 36 of title 50, authorizing electronic surveillance,
physical searches, the use of pen register and trap and trace
devices, and the production of tangible things.
(2) Funding source.--Section 1103(4) of the Violence
Against Women and Department of Justice Reauthorization Act
of 2005 is amended--
(A) in subparagraph (C), by striking ``and'' after the
semicolon;
(B) in subparagraph (D), by striking the period and
inserting ``; and''; and
(C) by adding at the end the following:
``(E) $5,000,000 for the implementation of the secure
electronic filing system established by Section 11(a)(1) of
the National Security Letter Reform Act.''.
(b) Personnel and Information Technology Needs.--
(1) Office of intelligence policy and review.--
(A) In general.--The Office of Intelligence Policy and
Review of the Department of Justice may hire personnel and
procure information technology, as needed, to ensure the
timely and efficient processing of applications to the court
established under section 103(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803).
(B) Funding source.--
(i) Section 1103(4) of the Violence Against Women and
Department of Justice Reauthorization Act of 2005 is
amended--
(I) in subparagraph (D), by striking ``and'' after the
semicolon;
(II) in subparagraph (E), by striking the period and
inserting ``; and''; and
(III) by adding at the end the following:
``(F) not to exceed $3,000,000 for the personnel and
information technology as specified in Section 11(b)(1)(A) of
the National Security Letter Reform Act.''.
(ii) Section 1104(4) of the Violence Against Women and
Department of Justice Reauthorization Act of 2005 is
amended--
(I) in subparagraph (C), by striking ``and'' after the
semicolon;
(II) in subparagraph (D), by striking the period and
inserting ``; and''; and
(III) by adding at the end the following:
``(E) not to exceed $3,000,000 for the personnel and
information technology as specified in Section 11(b)(1)(A) of
the National Security Letter Reform Act.''.
(2) FBI.--
(A) In general.--The Federal Bureau of Investigation may
hire personnel and procure information technology, as needed,
to ensure the timely and efficient processing of applications
to the Foreign Intelligence Surveillance Court.
(B) Funding source.--
(i) Section 1103(7) of the Violence Against Women and
Department of Justice Reauthorization Act of 2005 is amended
by inserting before the period the following: ``, and which
shall include not to exceed $3,000,000 for the personnel and
information technology as specified in Section 11(b)(2)(A) of
the National Security Letter Reform Act''.
(ii) Section 1104(7) of the Violence Against Women and
Department of Justice Reauthorization Act of 2005 is amended
by inserting before the period the following: ``, and which
shall include not to exceed $3,000,000 for the personnel and
information technology as specified in Section 11(b)(2)(A) of
the National Security Letter Reform Act''.
SEC. 12. ENHANCED PROTECTIONS FOR EMERGENCY DISCLOSURES.
(a) Stored Communications Act.--Section 2702 of title 18,
United States Code is amended--
(1) in subsection (b)(8), by--
(A) striking ``, in good faith,'' and inserting
``reasonably'';
(B) inserting ``immediate'' after ``involving''; and
(C) adding before the period: ``, subject to the
limitations of subsection (d) of this section;'';
(2) in subsection (c)(4) by--
(A) striking ``. in good faith,'' and inserting
``reasonably'';
(B) inserting ``immediate'' after ``involving''; and
(C) adding before the period: ``, subject to the
limitations of subsection (d) of this section.'';
(3) redesignating subsection (d) as subsection (e) and
adding after subsection (c) the following:
``(d) Requirement.--
``(1) Request.--If a governmental entity requests that a
provider divulge information pursuant to subsection (b)(8) or
(c)(4), the request shall specify that the disclosure is on a
voluntary basis and shall document the factual basis for
believing that an emergency involving immediate danger of
death or serious physical injury to any person requires
disclosure without delay of the information.
``(2) Notice to court.--Within 5 days of obtaining access
to records under subsection (b)(8) or (c)(4), the
governmental entity shall file with the appropriate court a
signed, sworn statement of a supervisory official of a rank
designated by the head of the governmental entity setting
forth the grounds for the emergency access.''; and
(4) in subsection (e), as redesignated in paragraphs (1)
and (2), by striking ``subsection (b)(8)'' and inserting
``subsections (b)(8) and (c)(4)''.
(b) Right to Financial Privacy Act.--
(1) Emergency disclosures.--The Right to Financial Privacy
Act of 1978 (12 U.S.C. 3401 et seq.) is amended by inserting
after section 1120 the following:
``SEC. 1121. EMERGENCY DISCLOSURES.
``(a) In General.--
``(1) Standard.--A financial institution (as defined in
section 1114(c)) may divulge a record described in section
1114(a) pertaining to a customer to a Government authority,
if the financial institution reasonably believes that an
emergency involving immediate danger of death or serious
physical injury to any person requires disclosure without
delay of information relating to the emergency.
``(2) Notice in request.--If a Government authority
requests that a financial institution divulge information
pursuant to this section, the request shall specify that the
disclosure is on a voluntary basis, and shall document the
factual basis for believing that an emergency involving
immediate danger of death or serious physical injury to any
person requires disclosure without delay of the information.
``(b) Certificate.--In the instances specified in
subsection (a), the Government shall submit to the financial
institution the certificate required in section 1103(b),
signed by a supervisory official of a rank designated by the
head of the Government authority.
``(c) Notice to Court.--Within 5 days of obtaining access
to financial records under this section, the Government
authority shall file with the appropriate court a signed,
sworn statement of a supervisory official of a rank
designated by the head of the Government authority setting
forth the grounds for the emergency access. The Government
authority shall thereafter comply with the notice provisions
of section 1109.
``(d) Reporting of Emergency Disclosures.--On an annual
basis, the Attorney General of the United States shall submit
to the Committee on the Judiciary and the
[[Page S12063]]
Committee on Financial Services of the House of
Representatives and the Committee on the Judiciary and the
Committee on Banking, Housing, and Urban Affairs of the
Senate a report containing--
``(1) the number of individuals for whom the Department of
Justice has received voluntary disclosures under this
section; and
``(2) a summary of the bases for disclosure in those
instances where--
``(A) voluntary disclosures under this section were made to
the Department of Justice; and
``(B) the investigation pertaining to those disclosures was
closed without the filing of criminal charges.''.
(2) Conforming amendments.--The Right to Financial Privacy
Act of 1978 (12 U.S.C. 3401 et seq.) is amended--
(A) in section 1102 (12 U.S.C. 3402), by striking ``or
1114'' and inserting ``1114, or 1121''; and
(B) in section 1109(c) (12 U.S.C. 3409(c)), by striking
``1114(b)'' and inserting ``1121''.
(c) Fair Credit Reporting Act.--Section 627 of the Fair
Credit Reporting Act (15 U.S.C. 1681v) is amended to read as
follows:
``SEC. 627. EMERGENCY DISCLOSURES.
``(a) In General.--
``(1) Standard.--A consumer reporting agency may divulge
identifying information respecting any consumer, limited to
the name, address, former addresses, places of employment, or
former places of employment of the consumer, to a Government
agency, if the consumer reporting agency reasonably believes
that an emergency involving immediate danger of death or
serious physical injury to any person requires disclosure
without delay of information relating to the emergency.
``(2) Notice in request.--If a Government agency requests
that a consumer reporting agency divulge information pursuant
to this section, the request shall specify that the
disclosure is on a voluntary basis, and shall document the
factual basis for believing that an emergency involving
immediate danger of death or serious physical injury to any
person requires disclosure without delay of the information.
``(b) Notice to Court.--Within 5 days of obtaining access
to identifying information under this section, the Government
agency shall file with the appropriate court a signed, sworn
statement of a supervisory official of a rank designated by
the head of the Government agency setting forth the grounds
for the emergency access.
``(c) Reporting of Emergency Disclosures.--On an annual
basis, the Attorney General of the United States shall submit
to the Committee on the Judiciary and the Committee on
Financial Services of the House of Representatives and the
Committee on the Judiciary and the Committee on Banking,
Housing, and Urban Affairs of the Senate a report
containing--
``(1) the number of individuals for whom the Department of
Justice has received voluntary disclosures under this
section; and
``(2) a summary of the bases for disclosure in those
instances where--
``(A) voluntary disclosures under this section were made to
the Department of Justice; and
``(B) the investigation pertaining to those disclosures was
closed without the filing of criminal charges.''.
SEC. 13. CLARIFICATION REGARDING DATA RETENTION.
Subsection 2703(f) of title 18, United States Code, is
amended by adding at the end the following:
``(3) A provider of wire or electronic communications
services or a remote computing service who has received a
request under this subsection shall not disclose the records
referred to in paragraph (1) until such provider has received
a court order or other process.''.
SEC. 14. LEAST INTRUSIVE MEANS.
(a) Guidelines.--
(1) In general.--The Attorney General shall issue
guidelines (consistent with Executive Order 12333 or
successor order) instructing that when choices are available
between the use of information collection methods in national
security investigations that are more or less intrusive, the
least intrusive collection techniques feasible are to be
used.
(2) Specific collection techniques.--The guidelines
required by this section shall provide guidance with regard
to specific collection techniques, including the use of
national security letters, considering such factors as--
(A) the effect on the privacy of individuals;
(B) the potential damage to reputation of individuals; and
(C) any special First Amendment concerns relating to a
potential recipient of a National Security Letter or other
legal process, including a direction that prior to issuing
such National Security Letter or other legal process to a
library or bookseller, investigative procedures aimed at
obtaining the relevant information from entities other than a
library or bookseller be utilized and have failed, or
reasonably appear to be unlikely to succeed if tried or
endanger lives if tried.
(b) Definitions.--In this section:
(1) Bookseller.--The term ``bookseller'' means a person or
entity engaged in the sale, rental, or delivery of books,
journals, magazines, or other similar forms of communication
in print or digitally.
(2) Library.--The term ``library'' means a library (as that
term is defined in section 213(2) of the Library Services and
Technology Act (20 U.S.C. 9122(2))) whose services include
access to the Internet, books, journals, magazines,
newspapers, or other similar forms of communication in print
or digitally to patrons for their use, review, examination,
or circulation.
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