H.R. 3179 Section-by-Section
Section 1: Short Title: 'Anti-Terrorism Intelligence Tools Improvement Act of 2003'
Section 2: Violation of Nondisclosure Provisions of National Security Letters
Background on NSLs: National Security Letters are administrative subpoenas that can be issued by an FBI field office to obtain credit reports, electronic communications transactional records (e.g. billing records), and records of financial institutions (which were recently expanded to include such institutions as casinos, travel agents, car and boat dealerships, jewelers, etc.). The recipient of an NSL is subject to a strict nondisclosure rule - they are not permitted to tell anyone that they have received and/or complied with an NSL.
Current law: There are no explicit penalties for violating the nondisclosure provisions of NSL authorities.
Proposed changes: The bill amends 18 U.S.C. § 1510 to establish criminal penalties of up to five years in prison for failure to comply with the nondisclosure provisions of NSL authorities.
Concerns/amendments: There is no judicial involvement in the issuance of NSLs and the automatic imposition of the gag provision, and the gag provision is worded very broadly. Thus, imposing criminal penalties for violation of the gag provision could be disproportionate in some instances. Possible changes include imposing civil fines instead of criminal penalties, and clarifying that individuals who tell their attorneys, congressional committees, or the DOJ Inspector General that they have received an NSL do not violate the gag rule.
Section 3: Judicial Enforcement of National Security Letters
Background on NSLs: National Security Letters are administrative subpoenas that can be issued by an FBI field office to obtain credit reports, electronic communications transactional records (e.g. billing records), and records of financial institutions (which were recently expanded to include such institutions as casinos, travel agents, car and boat dealerships, jewelers, etc.).
Current law: There are no explicit penalties for failing to comply with NSL requests. According to DOJ oversight responses, as of May 2003 no one had ever challenged an NSL request, although last month the ACLU filed suit challenging their constitutionality.
Proposed changes: The bill would create a new 18 U.S.C. § 2332h to allow DOJ to ask a court to act via court order or contempt proceedings if a recipient of an NSL does not comply.
Concerns/amendments: After the USA PATRIOT Act, the NSL authority can be read quite broadly to allow the FBI to obtain entire databases of records without a court order. If the government is permitted to judicially enforce NSLs, recipients of NSLs should be allowed to participate and also should be able to initiate their own court challenge. Recipients of grand jury subpoenas can move to quash if a request is overbroad, unduly burdensome or seeks privileged information; recipients of NSLs should have the same rights, especially if they are subject to judicial contempt for failure to comply. Furthermore, DOJ has provided no concrete examples where companies' failure to comply with NSLs has been a problem.
Section 4: Individual Terrorists as Agents of Foreign Powers
Background on FISA: The Foreign Intelligence Surveillance Act was passed in 1978 to allow secret surveillance in the United States of individuals suspected or alleged to be engaging in certain activities (including espionage and terrorism) on behalf of foreign governments or foreign organizations, without meeting the criminal standard and without ever notifying the individuals they had been under surveillance. FISA constitutional under the Fourth Amendment because of that connection to a foreign power, and therefore fundamental national security concerns.
Current law: FISA (18 U.S.C. § 1801(b)(1)) allows surveillance of agents of foreign powers, defined as persons who are engaged in terrorism or espionage on behalf of foreign organizations or foreign governments.
Proposed changes: The bill would amend 50 U.S.C. § 1801(b)(1) to allow secret surveillance and searches under FISA of non-U.S. persons acting alone, without connection to a foreign power, who engage in international terrorism or activities in preparation therefor.
Concerns/amendments: This change would expand FISA beyond its intended scope and allow it to be used against an individual who may be planning a crime but has no connection to a foreign power. In those circumstances, the Fourth Amendment requires that criminal procedures be used; to allow FISA surveillance would be unconstitutional under the reasoning of the 2002 FISA Court of Review court decision. To retain the foreign power connection, this section could be amended to create a permissive presumption that any individual engaging in international terrorism or activities in preparation therefor is acting on behalf of a foreign power. In addition, the Senate version of this proposal (S.113) contains a sunset provision and FISA reporting requirements, which the House should also consider.
Section 5: Ex Parte Authorizations under Classified Information Procedures Act
Background on CIPA: The Classified Information Procedures Act (18 U.S.C. App. 3) governs the discovery and use of classified information in criminal trials.
Current law: Under Section 4 of CIPA, a court may let the government make an ex parte written request to substitute a summary for classified information when providing information to a defendant in the discovery process.
Proposed changes: The proposal would amend CIPA to say that the court shall let the government seek such authorization in ex parte proceedings, and would allow the government to do so with an oral, rather than a written, statement.
Concerns/amendments: This provision removes a judge's discretion to manage the discovery process when classified information is involved. CIPA adequately protects national security information by allowing the judge to accept ex parte showings when necessary. Requiring the judge to accept ex parte showings in all instances removes the necessary check on government misuse of this authority. Further, there is no justification for allowing an oral (rather than a written) request during the discovery process, when there is little time pressure and virtually all communications are written.
Section 6: Use of FISA Information in Immigration Proceedings
Background on FISA: The lowered standards and secrecy of the Foreign Intelligence Surveillance Act are constitutionally acceptable because it was contemplated that information would not generally be used to take any action against an individual. FISA has, however, always permitted information gathered in FISA searches to be used in criminal, immigration and other proceedings, subject to certain minimal procedures.
Current law: Under FISA (50 U.S.C. §§ 1806, 1825, 1845), when the government seeks to use information against an individual, it must notify that individual that he has been subject to surveillance. However, FISA contains much greater protection for maintaining the secrecy of information gathered under FISA authorities than exist for any other kind of classified information. For example, no individual has ever been allowed to see the application for a FISA order against him.
Proposed change: The bill would amend the relevant FISA provisions to allow the government to use FISA surveillance, search, and pen/trap information in civil immigration proceedings without disclosing that information or even the fact that the individual had been targeted under FISA.
Concerns: This provision would unconstitutionally allow the government to use information against an individual, including legal permanent residents, without even informing the individual that the information was being used. The provision would allow the use of secret information in a manner that goes beyond even the current authority for using secret evidence in immigration proceedings.
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