S.Amdt. 2893

SA 2893. Mr. FEINGOLD (for himself and Mr. Bingaman) submitted an amendment intended to be proposed by him to the bill S. 2271, to clarify that individuals who receive FISA orders can challenge nondisclosure requirements, that individuals who receive national security letters are not required to disclose the name of their attorney, that libraries are not wire or electronic communication service providers unless they provide specific services, and for other purposes; which was ordered to lie on the table; as follows:

On page 2, strike line 9 and all that follows through page 6, line 2 and insert the following:

SEC. 3. JUDICIAL REVIEW OF FISA ORDERS AND NATIONAL SECURITY LETTERS.

(a) FISA.--Section 501(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861), as amended by the applicable Act, is amended by striking paragraphs (1) and (2) and inserting the following:

“(1)(A) A person receiving an order to produce any tangible thing under this section may challenge the legality of that order, including any prohibition on disclosure, by filing a petition with the pool established by section 103(e)(1).

“(B) The presiding judge shall immediately assign a petition submitted under subparagraph (A) to 1 of the judges serving in the pool established by section 103(e)(1).

“(C)(i) Not later than 72 hours after the assignment of a petition under subparagraph (B), the assigned judge shall conduct an initial review of the petition.

“(ii) If the assigned judge determines under clause (i) that--

“(I) the petition is frivolous, the assigned judge shall immediately deny the petition and affirm the order; and

“(II) the petition is not frivolous, the assigned judge shall promptly consider the petition in accordance with the procedures established pursuant to section 103(e)(2).

“(D) The assigned judge may modify or set aside the order only if the judge finds that the order does not meet the requirements of this section or is otherwise unlawful. If the judge does not modify or set aside the order, the judge shall immediately affirm the order and order the recipient to comply therewith. The assigned judge shall promptly provide a written statement for the record of the reasons for any determination under this paragraph.

“(2) A petition for review of a decision to affirm, modify, or set aside an order, including any prohibition on disclosure, by the United States or any person receiving such order shall be to the court of review established under section 103(b), which shall have jurisdiction to consider such petitions. The court of review shall provide for the record a written statement of the reasons for its decision and, on petition of the United States or any person receiving such order for writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.”.

(b) Judicial Review of National Security Letters.--Section 3511(b) of title 18, United States Code, as amended by the applicable Act, is amended--

(1) in paragraph (2), by striking “If, at the time of the petition,” and all that follows through the end of the paragraph; and

(2) in paragraph (3), by striking “If the recertification that disclosure may” and all that follows through “made in bad faith.”.