H.R.3162

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (Received in the Senate)

SEC. 213. AUTHORITY FOR DELAYING NOTICE OF THE EXECUTION OF A WARRANT.

Section 3103a of title 18, United States Code, is amended--

(1) by inserting `(a) IN GENERAL- ' before `In addition'; and

(2) by adding at the end the following:

`(b) DELAY- With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if--

`(1) the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in section 2705);

`(2) the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510), or, except as expressly provided in chapter 121, any stored wire or electronic information, except where the court finds reasonable necessity for the seizure; and

`(3) the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.'.

SEC. 214. PEN REGISTER AND TRAP AND TRACE AUTHORITY UNDER FISA.

(a) APPLICATIONS AND ORDERS- Section 402 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842) is amended--

(1) in subsection (a)(1), by striking `for any investigation to gather foreign intelligence information or information concerning international terrorism' and inserting `for any investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution';

(2) by amending subsection (c)(2) to read as follows:

`(2) a certification by the applicant that the information likely to be obtained is foreign intelligence information not concerning a United States person or is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.';

(3) by striking subsection (c)(3); and

(4) by amending subsection (d)(2)(A) to read as follows:

`(A) shall specify--

`(i) the identity, if known, of the person who is the subject of the investigation;

`(ii) the identity, if known, of the person to whom is leased or in whose name is listed the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied;

`(iii) the attributes of the communications to which the order applies, such as the number or other identifier, and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied and, in the case of a trap and trace device, the geographic limits of the trap and trace order.'.

(b) AUTHORIZATION DURING EMERGENCIES- Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843) is amended--

(1) in subsection (a), by striking `foreign intelligence information or information concerning international terrorism' and inserting `foreign intelligence information not concerning a United States person or information to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution'; and

(2) in subsection (b)(1), by striking `foreign intelligence information or information concerning international terrorism' and inserting `foreign intelligence information not concerning a United States person or information to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution'.

SEC. 215. ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.

Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended by striking sections 501 through 503 and inserting the following:

`SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS.

`(a)(1) 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 make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

`(2) An investigation conducted under this section shall--

`(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and

`(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

`(b) Each application under this section--

`(1) shall be made to--

`(A) a judge of the court established by section 103(a); or

`(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code, 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 that court; and

`(2) shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to protect against international terrorism or clandestine intelligence activities.

`(c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.

`(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a).

`(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.

`(e) A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.

`SEC. 502. CONGRESSIONAL OVERSIGHT.

`(a) On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests for the production of tangible things under section 402.

`(b) On a semiannual basis, the Attorney General shall provide to the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding 6-month period--

`(1) the total number of applications made for orders approving requests for the production of tangible things under section 402; and

`(2) the total number of such orders either granted, modified, or denied.'.

SEC. 216. MODIFICATION OF AUTHORITIES RELATING TO USE OF PEN REGISTERS AND TRAP AND TRACE DEVICES.

(a) GENERAL LIMITATIONS- Section 3121(c) of title 18, United States Code, is amended--

(1) by inserting `or trap and trace device' after `pen register';

(2) by inserting `, routing, addressing,' after `dialing'; and

(3) by striking `call processing' and inserting `the processing and transmitting of wire or electronic communications so as not to include the contents of any wire or electronic communications'.

(b) ISSUANCE OF ORDERS-

(1) IN GENERAL- Section 3123(a) of title 18, United States Code, is amended to read as follows:

`(a) IN GENERAL-

`(1) ATTORNEY FOR THE GOVERNMENT- Upon an application made under section 3122(a)(1), the court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace device anywhere within the United States, if the court finds that the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation. The order, upon service of that order, shall apply to any person or entity providing wire or electronic communication service in the United States whose assistance may facilitate the execution of the order. Whenever such an order is served on any person or entity not specifically named in the order, upon request of such person or entity, the attorney for the Government or law enforcement or investigative officer that is serving the order shall provide written or electronic certification that the order applies to the person or entity being served.

`(2) STATE INVESTIGATIVE OR LAW ENFORCEMENT OFFICER- Upon an application made under section 3122(a)(2), the court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace device within the jurisdiction of the court, if the court finds that the State law enforcement or investigative officer has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.

`(3)(A) Where the law enforcement agency implementing an ex parte order under this subsection seeks to do so by installing and using its own pen register or trap and trace device on a packet-switched data network of a provider of electronic communication service to the public, the agency shall ensure that a record will be maintained which will identify--

`(i) any officer or officers who installed the device and any officer or officers who accessed the device to obtain information from the network;

`(ii) the date and time the device was installed, the date and time the device was uninstalled, and the date, time, and duration of each time the device is accessed to obtain information;

`(iii) the configuration of the device at the time of its installation and any subsequent modification thereof; and

`(iv) any information which has been collected by the device.

To the extent that the pen register or trap and trace device can be set automatically to record this information electronically, the record shall be maintained electronically throughout the installation and use of such device.

`(B) The record maintained under subparagraph (A) shall be provided ex parte and under seal to the court which entered the ex parte order authorizing the installation and use of the device within 30 days after termination of the order (including any extensions thereof).'.

(2) CONTENTS OF ORDER- Section 3123(b)(1) of title 18, United States Code, is amended--

(A) in subparagraph (A)--

(i) by inserting `or other facility' after `telephone line'; and

(ii) by inserting before the semicolon at the end `or applied'; and

(B) by striking subparagraph (C) and inserting the following:

`(C) the attributes of the communications to which the order applies, including the number or other identifier and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied, and, in the case of an order authorizing installation and use of a trap and trace device under subsection (a)(2), the geographic limits of the order; and'.

(3) NONDISCLOSURE REQUIREMENTS- Section 3123(d)(2) of title 18, United States Code, is amended--

(A) by inserting `or other facility' after `the line'; and

(B) by striking `, or who has been ordered by the court' and inserting `or applied, or who is obligated by the order'.

(1) COURT OF COMPETENT JURISDICTION- Section 3127(2) of title 18, United States Code, is amended by striking subparagraph (A) and inserting the following:

`(A) any district court of the United States (including a magistrate judge of such a court) or any United States court of appeals having jurisdiction over the offense being investigated; or'.

(2) PEN REGISTER- Section 3127(3) of title 18, United States Code, is amended--

(A) by striking `electronic or other impulses' and all that follows through `is attached' and inserting `dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communication'; and

(B) by inserting `or process' after `device' each place it appears.

(3) TRAP AND TRACE DEVICE- Section 3127(4) of title 18, United States Code, is amended--

(A) by striking `of an instrument' and all that follows through the semicolon and inserting `or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication, provided, however, that such information shall not include the contents of any communication;'; and

(B) by inserting `or process' after `a device'.

(4) CONFORMING AMENDMENT- Section 3127(1) of title 18, United States Code, is amended--

(A) by striking `and'; and

(B) by inserting `, and `contents' after `electronic communication service'.

(5) TECHNICAL AMENDMENT- Section 3124(d) of title 18, United States Code, is amended by striking `the terms of'.

(6) CONFORMING AMENDMENT- Section 3124(b) of title 18, United States Code, is amended by inserting `or other facility' after `the appropriate line'.

SEC. 217. INTERCEPTION OF COMPUTER TRESPASSER COMMUNICATIONS.

Chapter 119 of title 18, United States Code, is amended--

(1) in section 2510--

(A) in paragraph (18), by striking `and' at the end;

(B) in paragraph (19), by striking the period and inserting a semicolon; and

`(20) `protected computer' has the meaning set forth in section 1030; and

`(21) `computer trespasser'--

`(A) means a person who accesses a protected computer without authorization and thus has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer; and

`(B) does not include a person known by the owner or operator of the protected computer to have an existing contractual relationship with the owner or operator of the protected computer for access to all or part of the protected computer.'; and

(2) in section 2511(2), by inserting at the end the following:

`(i) It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if--

`(I) the owner or operator of the protected computer authorizes the interception of the computer trespasser's communications on the protected computer;

`(II) the person acting under color of law is lawfully engaged in an investigation;

`(III) the person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to the investigation; and

`(IV) such interception does not acquire communications other than those transmitted to or from the computer trespasser.'.

SEC. 218. FOREIGN INTELLIGENCE INFORMATION.

Sections 104(a)(7)(B) and section 303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign Intelligence Surveillance Act of 1978 are each amended by striking `the purpose' and inserting `a significant purpose'.

SEC. 219. SINGLE-JURISDICTION SEARCH WARRANTS FOR TERRORISM.

Rule 41(a) of the Federal Rules of Criminal Procedure is amended by inserting after `executed' the following: `and (3) in an investigation of domestic terrorism or international terrorism (as defined in section 2331 of title 18, United States Code), by a Federal magistrate judge in any district in which activities related to the terrorism may have occurred, for a search of property or for a person within or outside the district'.

SEC. 220. NATIONWIDE SERVICE OF SEARCH WARRANTS FOR ELECTRONIC EVIDENCE.

(a) IN GENERAL- Chapter 121 of title 18, United States Code, is amended--

(1) in section 2703, by striking `under the Federal Rules of Criminal Procedure' every place it appears and inserting `using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation'; and

(2) in section 2711--

(A) in paragraph (1), by striking `and';

(B) in paragraph (2), by striking the period and inserting `; and'; and

`(3) the term `court of competent jurisdiction' has the meaning assigned by section 3127, and includes any Federal court within that definition, without geographic limitation.'.

(b) CONFORMING AMENDMENT- Section 2703(d) of title 18, United States Code, is amended by striking `described in section 3127(2)(A)'.

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