Order Code RS22384
Updated February 21, 2006
CRS Report for Congress
Received through the CRS Web
USA PATRIOT Act Additional Reauthorizing
Amendments Act of 2006 (S. 2271)
Brian T. Yeh
American Law Division
The USA PATRIOT Improvement and Reauthorization Act of 2005, H.R. 3199,
as reported by the conference committee, H.Rept. 109-333 (2005), and agreed to by the
House on December 14, 2005, raises the concern of several members of the Senate
regarding its protection of civil liberties. To provide the Senate with additional time to
consider the conference bill, the 109th Congress enacted legislation delaying the sunset
on certain provisions of the USA PATRIOT Act from December 31, 2005, to February
3, 2006 (P.L. 109-160), and then approved another extension of the sunset to March 10,
2006 (P.L. 109-170).
On February 10, 2006, the USA PATRIOT Act Additional Reauthorizing
Amendments Act of 2006, S. 2271, was introduced in the Senate. S. 22711 amends the
Foreign Intelligence Surveillance Act (FISA) and the five federal statutes providing
national security letter (NSL) authority to federal intelligence investigators2 in the
following manner: (1) it grants recipients of a Section 215 order the express right to
petition a FISA judge to modify or quash the nondisclosure requirement that
accompanies such an order; (2) it removes the requirement that recipients of Section 215
orders or recipients of NSLs must provide the FBI or the authorized government
authority with the name of the attorney they consulted to obtain legal advice concerning
the production order or the NSL; and (3) it clarifies that libraries, the services of which
include offering patrons access to the Internet, are not subject to NSLs, unless they are
functioning as electronic communication service providers.
Portions of this report are drawn from CRS Report RL33239, USA PATRIOT
Improvement and Reauthorization Act of 2005 (H.R. 3199): A Legal Analysis of the
Conference Bill, and CRS Report RS22348, USA PATRIOT Improvement and
Reauthorization Act of 2005 (H.R. 3199): A Brief Look.
This report examines the provisions of S. 2271 as introduced.
Section 2 of S. 2271 indicates that the bill amends the specified sections of FISA and the NSL
statutes after they are to be amended by H.R. 3199.
Congressional Research Service ˜ The Library of Congress
Judicial Review of the Section 215 Nondisclosure Requirement
Section 215 of the USA PATRIOT Act3 amended the business record sections of
FISA to authorize the Director of the Federal Bureau of Investigation (FBI), or a designee
of the Director, to apply to the FISA court to issue orders granting the government access
to any tangible item (including books, records, papers, and other documents), no matter
who holds it, in foreign intelligence, international terrorism, and clandestine intelligence
cases.4 A Section 215 order is accompanied by a nondisclosure requirement that prohibits
the recipient from disclosing to any other person that the FBI has sought the tangible
things described in the order, except to those persons necessary for compliance.5 Under
current law, the recipient of a Section 215 production order lacks an explicit statutory
right to petition the FISA court to modify or set aside either the production order or the
The conference bill accompanying the USA PATRIOT Improvement and
Reauthorization Act of 2005, H.R. 3199 [hereinafter “conference bill”], provides a
judicial review process for recipients of Section 215 orders to challenge their legality with
a specified pool of FISA court judges.6 However, the conference bill does not expressly
grant to recipients of such orders the right to petition the FISA court to modify or quash
the nondisclosure requirement imposed in connection with the production order. The
conference bill has been criticized for its lack of an express right to challenge the
Section 3 of S. 2271 addresses this omission by establishing a judicial review
procedure for Section 215 nondisclosure orders that largely resembles the procedure set
forth in the conference bill for challenging the nondisclosure order accompanying an
For one year after the date of the issuance of a Section 215 production
order, the nondisclosure requirement remains in full effect and may not
50 U.S.C. 1861(a)(1).
50 U.S.C. 1861(d). However, the conference bill clarifies that a recipient of a Section 215 order
may disclose its existence to an attorney to obtain legal advice, as well as to other persons
approved by the FBI, proposed 50 U.S.C. 1861(d)(1)(B), (C).
Section 106(f) of the conference bill, adding proposed 50 U.S.C. 1861(f)(1), proposed 50 U.S.C.
1803(e)(1) and proposed 50 U.S.C. 1803(e)(2).
152 CONG. REC. S1326 (daily ed. Feb. 15, 2006) (statement of Sen. Sununu) (“I think it is
important that we stand for the principle that a restriction on free speech such as a gag order can
be objected to in a court of law before a judge. You can at least have your case heard. That does
not mean you will win, necessarily, but you can at least have your case heard.”).
Proposed 18 U.S.C. 3511(b)(2)-(3).
By contrast, the conference bill does not impose a one-year moratorium on challenging the
nondisclosure order accompanying a NSL, proposed 18 U.S.C. 3511(b)(1).
After this one-year period has expired, the recipient of the production
order may petition the FISA court to modify or set aside the
Within 72 hours, if the judge assigned to consider the petition determines
after an initial review that the petition is frivolous, the judge shall
immediately deny the petition and affirm the nondisclosure order.11
If, after the initial review, the judge determines that the petition is not
frivolous, the judge shall promptly consider the petition under procedural
measures that the FISA court has established to protect national security,
including conducting the review in camera.12
The judge has discretion to modify or set aside a nondisclosure order
upon a finding that there is no reason to believe that disclosure may
endanger the national security of the United States; interfere with a
criminal, counterterrorism, or counterintelligence investigation; interfere
with diplomatic relations; or endanger the life or physical safety of any
If, at the time the individual files the petition for judicial review of a
nondisclosure order, the Attorney General, Deputy Attorney General, an
Assistant Attorney General, or the Director of the FBI certifies that
disclosure may endanger the national security of the United States or
interfere with diplomatic relations, then the FISA judge must treat such
government certification as conclusive unless the judge finds that the
certification was made in bad faith.14
If the judge grants a petition to quash the nondisclosure requirement,
upon the request of the government, such order is stayed pending review
of the decision to the FISA Court of Review.15
If the judge denies the petition to modify or set aside the nondisclosure
requirement, the recipient of the Section 215 order is precluded from
filing another such petition for one year.16
The FISA Court of Review has jurisdiction to consider a petition by the
government or by the recipient of a Section 215 order and to review a
FISA judge’s decision to affirm, modify, or set aside such production
order or the nondisclosure order imposed in connection with it.17 The
U.S. Supreme Court has jurisdiction to review a decision of the FISA
Court of Review concerning this matter.18
Proposed 50 U.S.C. 1861(f)(2)(A)(i).
Proposed 50 U.S.C. 1861(f)(2)(A)(ii).
Proposed 50 U.S.C. 1861(f)(2)(A)(ii), proposed 50 U.S.C. 1803(e)(2).
Proposed 50 U.S.C. 1861(f)(2)(C)(i).
Proposed 50 U.S.C. 1861(f)(2)(C)(ii).
Proposed 50 U.S.C. 1861(f)(2)(A)(iii).
Proposed 50 U.S.C. 1861(f)(2)(C)(iii).
Proposed 50 U.S.C. 1861(f)(3).
Removal of Requirement To Disclose Identity of Attorney Sought
To Obtain Legal Advice Regarding a Section 215 Order or an
The conference bill expressly clarifies that a recipient of a Section 215 order or an
NSL may disclose its existence to an attorney to obtain legal advice, as well as to other
persons approved by the FBI.20 The recipient is not required to inform the FBI or the
authorized government agency of the intent to consult with an attorney to obtain legal
assistance; however, upon the request of the FBI Director (or his designee), or upon the
request of the government agency authorized to issue the NSL, the recipient must disclose
to the FBI or the government agency the identity of the person to whom the disclosure
will be or was made.21
According to one of the sponsors of S. 2271, this provision of the conference bill
might have an unintended “chilling effect” on the individual’s right to seek legal counsel
regarding the Section 215 order or the NSL.22 Section 4 of S. 2271 amends FISA and the
five statutes providing NSL authority to federal intelligence investigators to exempt
explicitly from the identification disclosure requirement the name of the attorney sought
to obtain legal advice with respect to the Section 215 production order or NSL. S. 2271
achieves this exemption by omission (in the case of a Section 215 order) and by explicit
language (in the NSL statutes), as described below:
Under the conference bill’s proposed 50 U.S.C. 1861(d)(1), the recipient of a Section
215 order is prohibited from disclosing to any other person that the FBI has sought the
tangible things described in the order, except to the following individuals:
(A) those persons necessary for compliance with the order,
(B) an attorney to obtain legal advice with respect to the order, or
(B) other persons as permitted by the FBI Director or his designee.
S. 2271 amends the conference bill’s proposed 50 U.S.C. 1861(d)(2)(C) to provide that
the FBI Director or his designee may require any person to disclose the identity of persons
Five federal statutes, in roughly the same terms, authorize federal intelligence investigators
(generally the FBI) to request that communications providers, financial institutions, and credit
bureaus provide certain customer information relating to a national security investigation. These
statutes are 12 U.S.C. 3414; 15 U.S.C.1681u; 15 U.S.C. 1681v; 18 U.S.C. 2709; 50 U.S.C. 436.
Proposed 50 U.S.C. 1861(d)(1)(B), (C); proposed 18 U.S.C. 2709(c)(1); proposed 15 U.S.C.
1681u(d)(1); proposed 15 U.S.C. 1681v(c)(1); proposed 12 U.S.C. 3414(a)(3)(A); proposed 12
U.S.C. 3414(a)(5)(D)(i); proposed 50 U.S.C. 436(b)(1).
Proposed 50 U.S.C. 1861(d)(2)(C); proposed 18 U.S.C. 2709(c)(4); proposed 15 U.S.C.
1681u(d)(4); proposed 15 U.S.C. 1681v(c)(4); proposed 12 U.S.C. 3414(a)(3)(D); proposed 12
U.S.C. 3414(a)(5)(D)(iv); proposed 50 U.S.C. 436(b)(4).
152 CONG. REC. S1326 (daily ed. Feb. 15, 2006) (statement of Sen. Sununu) (“[W]e feel the
provision in the conference report that required the recipient of a national security letter to
disclose the name of their attorney to the FBI was punitive and might have the result of
discouraging an individual from seeking legal advice.”).
falling within categories A and C above; notably, it omits B, which effectively removes
from the identity disclosure requirement attorneys sought for legal assistance.
Section 4 of S. 2271 also amends the five NSL statutes by adding language expressly
exempting the identity of attorneys from the disclosure requirement established by the
At the request of the Director of the Federal Bureau of Investigation or the designee
of the Director, any person making or intending to make a disclosure under this
section shall identify to the Director or such designee the person to whom such
disclosure will be made or to whom such disclosure was made prior to the request,
except that nothing in this section shall require a person to inform the Director or
such designee of the identity of an attorney to whom disclosure was made or will be
made to obtain legal advice or legal assistance with respect to the request under
NSLs Not Applicable to Libraries
Section 5 of S. 2271, entitled “Privacy Protections for Library Patrons,” addresses
the concern that a library could potentially be subject to an NSL issued under 18 U.S.C.
2709 to obtain certain transactional and subscriber records pertaining to its patrons.24 18
U.S.C. 2709 provides NSL authority to the Department of Justice to obtain certain
transaction records from electronic communication service providers for
counterintelligence purposes. Because libraries often offer patrons the ability to access
the Internet, current law is unclear as to whether libraries might be considered “electronic
communication service providers” for purposes of 18 U.S.C. 2709. S. 2271 amends 18
U.S.C. 2709 by adding the following section:
“A library ..., the services of which include access to the Internet ... is not a wire or
electronic communication service provider for purposes of this section, unless the
library is providing the services defined in section 2510(15) of this title...”25
According to one of the sponsors of the bill, this “provision ... makes very clear that
libraries operating in their traditional role, including the lending of books, including
making books available in digital form, including providing basic Internet access, are not
subject to National Security Letters.”26
However, if the library “provides” the services described in 18 U.S.C. 2510(15),
which are “electronic communication services,” then such library would still be subject
Proposed 18 U.S.C. 2709(c)(4). The language used to describe this exception in proposed 18
U.S.C. 2709(c)(4) is substantially similar to that used in the proposed amendments to the other
However, a library could still be subject to a Section 215 order under FISA for the production
of tangible items such as loan records. S. 2271 does not carve out any exception for libraries
under Section 215. For more information on this issue, see CRS Report RS21441, Libraries and
the USA PATRIOT Act, by Charles Doyle and Brian T. Yeh.
Proposed 18 U.S.C. 2709(f) [emphasis added].
152 CONG. REC. S1326 (daily ed. Feb. 15, 2006) (statement of Sen. Sununu).
to NSLs. 18 U.S.C. 2510(15) defines “electronic communication service” to mean any
service that provides to users the ability to send or receive wire or electronic
communications. Yet, this definition potentially could include libraries that offer
electronic mail access to their patrons, depending on the meaning of the words italicized
above. There are few instances in federal law that explicitly provide a definition of
“service provider.” For possible insight into the intent of the language used in 18 U.S.C.
2510(15), it may be useful to consult the Digital Millennium Copyright Act, which
defines “service provider” as follows:27
(A) [T]he term “service provider” means an entity offering the transmission, routing,
or providing of connections for digital online communications, between or among
points specified by a user, of material of the user’s choosing, without modification to
the content of the material as sent or received.
(B) [T]he term “service provider” means a provider of online services or network
access, or the operator of facilities therefor, and includes an entity described in
Although the second of these two definitions is broadly worded and arguably could
be used to encompass a library that offers Internet access to patrons, another reasonable
interpretation of the foregoing suggests that to be considered an electronic communication
service provider under 18 U.S.C. 2510(15), a library must independently operate the
means by which transmission, routing, and connection of digital communication occurs.28
In contrast, a local county library likely has a service contract with an Internet Service
Provider (ISP) to furnish the library with the electronic communication service, as many
businesses and individuals do; the fact that the library has set up a computer with Internet
access for the use of its patrons probably does not, by itself, turn the library into a
communications service “provider.” Under this characterization, the actual “provider”
of Internet access is the ISP, not the library.29 Therefore, a public library offering “basic”
Internet access would likely not be considered an electronic communication service
provider, at least for purposes of being an entity subject to the NSL provisions in 18
17 U.S.C. 512 (k)(1).
A large library affiliated with a university, for example, may function in a capacity similar to
an ISP, and thus could be considered a communications provider subject to NSL authority. These
libraries may offer their students the ability to post materials on website servers operated by the
See 152 CONG. REC. S1390 (daily ed. Feb. 16, 2006) (statement of Sen. Sununu) (“Some have
noted or may note that basic Internet access gives library patrons the ability to send and receive
e-mail by, for example, accessing an Internet-based e-mail service. But in that case, it is the Web
site operator who is providing the communication service — the Internet communication service
provider itself — and not the library, which is simply making available a computer with access
to the Internet.”).
See 152 CONG. REC. S1390 (daily ed. Feb. 16, 2006) (statement of Sen. Durbin) (“By way of
comparison, a gas station that has a pay phone isn’t a telephone company. So a library that has
Internet access, where a person can find an Internet e-mail service, is not a communications
service provider; therefore, it would not fall under the purview of the NSL provision in 18 U.S.C.
2709. It is a critically important distinction.”).