[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2528 Introduced in Senate (IS)]
2d Session
S. 2528
To restore civil liberties under the First Amendment, the Immigration
and Nationality Act, and the Foreign Intelligence Surveillance Act, and
for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 16, 2004
Mr. Kennedy (for himself, Mr. Leahy, Mr. Durbin, Mr. Feingold, and Mr.
Corzine) introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To restore civil liberties under the First Amendment, the Immigration
and Nationality Act, and the Foreign Intelligence Surveillance Act, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Civil Liberties Restoration Act of
2004''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Fighting terrorism is a priority for our Nation.
(2) As Federal, State, and local law enforcement work
tirelessly every day to prevent another terrorist attack, our
Nation must continue to work to ensure that law enforcement
have the legal tools and resources to do their job.
(3) At the same time, steps that are taken to protect the
United States from terrorism should not undermine
constitutional rights and protections.
(4) Some of the steps taken by the Administration since
September 11, 2001, however, have undermined constitutional
rights and protections.
(5) Our nation must strive for both freedom and security.
(6) This Act seeks to restore essential rights and
protections without compromising our Nation's safety.
TITLE I--RESTORING FIRST AMENDMENT RIGHTS
SEC. 101. LIMITATION ON CLOSED IMMIGRATION HEARINGS.
(a) In General.--Section 240 of the Immigration and Nationality Act
(8 U.S.C. 1229a) is amended--
(1) by redesignating subsection (e) as subsection (f); and
(2) by inserting after subsection (d) the following new
subsection:
``(e) Standards for Closing Removal Hearings.--
``(1) In general.--Subject to paragraph (2), a removal
proceeding held pursuant to this section shall be open to the
public.
``(2) Exceptions.--Portions of a removal proceeding held
pursuant to this section may be closed to the public by an
immigration judge on a case by case basis, when necessary--
``(A) to preserve the confidentiality of
applications for asylum, withholding of removal, relief
under the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, the
Violence Against Women Act of 1994 (Public Law 103-322;
108 Stat. 1902), or the Victims of Trafficking and
Violence Prevention Act of 2000 (Public Law 106-386;
114 Stat. 1464), or other applications for relief
involving confidential personal information or where
portions of the removal hearing involve minors or
issues relating to domestic violence, all with the
consent of the alien;
``(B) to prevent the disclosure of classified
information that threatens the national security of the
United States and the safety of the American people; or
``(C) to prevent the disclosure of the identity of
a confidential informant.
``(3) Compelling government interest.--In order for
portions of removal proceedings to be closed to the public in
accordance with this subsection, the government must show that
such closing of the proceedings is necessitated by a compelling
governmental interest and is narrowly tailored to serve that
interest.''.
(b) Technical and Conforming Amendments.--Section 240(b) of the
Immigration and Nationality Act (8 U.S.C. 1229a(b)) is amended--
(1) in paragraph (5)(C)(i), by striking ``subsection
(e)(1)'' and inserting ``subsection (f)(1)''; and
(2) in paragraph (7), by striking ``subsection (e)(1)'' and
inserting ``subsection (f)(1)''.
TITLE II--PROVIDING DUE PROCESS FOR INDIVIDUALS
SEC. 201. TIMELY SERVICE OF NOTICE.
(a) In General.--Section 236 of the Immigration and Nationality Act
(8 U.S.C. 1226) is amended by adding at the end the following:
``(f) Notice of Charges.--The Secretary of Homeland Security shall
serve a notice to appear on every alien arrested or detained under this
Act, except those certified under section 236A(a)(3), within 48 hours
of the arrest or detention of such alien. Any alien, except those
certified under section 236A(a)(3), held for more than 48 hours shall
be brought before an immigration judge within 72 hours of the arrest or
detention of such alien. The Secretary of Homeland Security shall--
``(1) document when a notice to appear is served on a
detainee in order to determine compliance by the Department of
Homeland Security with the 48-hour notice requirement; and
``(2) submit to the Committees on the Judiciary of the
Senate and the House of Representatives an annual report
concerning the Department of Homeland Security's compliance
with such notice requirement.''.
(b) Applicability of Other Law.--Nothing in section 236(f) of the
Immigration and Nationality Act, as added by subsection (a), shall be
construed to repeal section 236A of such Act (8 U.S.C. 1226a).
SEC. 202. INDIVIDUALIZED BOND DETERMINATIONS.
(a) In General.--Section 236(a) of the Immigration and Nationality
Act (8 U.S.C. 1226(a)) is amended--
(1) by striking ``On a warrant'' and inserting the
following:
``(1) In general.--On a warrant'';
(2) by striking ``Except as provided'' and all that follows
through the end and inserting the following: ``This subsection
shall apply to all aliens detained pending a decision on their
removal or admission, regardless of whether or not they have
been admitted to the United States, including any alien found
to have a credible fear of persecution under section
235(b)(1)(B) or any alien admitted or seeking admission under
the visa waiver program pursuant to section 217. Except as
provided in subsection (c) and pending such decision, the
Secretary of Homeland Security shall--
``(A) make an individualized determination as to
whether the alien should be released pending
administrative and judicial review, to include a
determination of whether the alien poses a danger to
the safety of other persons or property and is likely
to appear for future scheduled proceedings; and
``(B) grant the alien release pending
administrative and judicial review under reasonable
bond or other conditions, including conditional parole,
that will reasonably assure the presence of the alien
at all future proceedings, unless the Secretary of
Homeland Security determines under subparagraph (A)
that the alien poses a danger to the safety of other
persons or property or is unlikely to appear for future
proceedings.
``(2) Individualized determinations.--An individualized
determination made by the Secretary of Homeland Security
pursuant to paragraph (1)(A) shall be reviewable at a hearing
held before an immigration judge pursuant to section 240. An
immigration judge who reviews an initial bond determination by
the Secretary of Homeland Security, or who makes a bond
determination prior to a decision by the Secretary of Homeland
Security, shall apply the same standards set forth in
subparagraphs (A) and (B) of paragraph (1).''.
(b) Revocation of Bond or Parole.--Section 236(b) of the
Immigration and Nationality Act (8 U.S.C. 1226(b)) is amended by
striking ``The Attorney General'' and all that follows through the
period and inserting the following: ``The bond or parole determination
made pursuant to subsection (a)(1)(B) may be revoked or modified only
by an immigration judge in proceedings held pursuant to section 240,
and only if the party seeking to revoke or modify the bond or parole
determination can establish a change in circumstances. The
administrative decision finding the alien removable does not, in and of
itself, constitute a change in circumstances. At such a hearing, if
changed circumstances are established, the immigration judge shall make
a new individualized determination in the manner described in
subsection (a).''.
(c) Technical and Conforming Amendments.--Section 236 of the
Immigration and Nationality Act (8 U.S.C. 1226) is amended--
(1) by striking ``Attorney General'' each place that term
appears and inserting ``Secretary of Homeland Security''; and
(2) in subsection (e), by striking ``Attorney General's''
and inserting ``Secretary of Homeland Security's''.
SEC. 203. LIMITATION ON STAY OF A BOND.
Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226),
as amended by section 201, is further amended by adding at the end the
following:
``(g) Stay of a Bond Determination.--An order issued by an
immigration judge to release an alien may be stayed by the Board of
Immigration Review, for not more than 30 days, only if the Government
demonstrates--
``(1) the likelihood of success on the merits;
``(2) irreparable harm to the Government if a stay is not
granted;
``(3) that the potential harm to the Government outweighs
potential harm to alien; and
``(4) that the grant of a stay is in the interest of the
public.''.
SEC. 204. IMMIGRATION REVIEW COMMISSION.
(a) Establishment of Commission.--
(1) In general.--There is established within the Department
of Justice an independent regulatory agency to be known as the
Immigration Review Commission (referred to in this section as
the ``Commission''). The Executive Office of Immigration Review
is hereby abolished and replaced with such Commission.
(2) Transfer of authority.--The Commission shall perform
all administrative, appellate, and adjudicatory functions that
were, prior to the date of enactment of this Act, the functions
of the Executive Office of Immigration Review or were performed
by any officer or employee of the Executive Office of
Immigration Review in the capacity of such officer or employee.
Such functions shall not include the policy-making, policy-
implementation, investigatory, or prosecutorial functions of
the Department of Homeland Security.
(3) Organization.--The Commission shall consist of:
(A) The Office of the Director.
(B) The Board of Immigration Review.
(C) The Office of the Chief Immigration Judge.
(D) The Office of the Chief Administrative Hearing
Officer.
(b) Office of the Director.--
(1) Appointment.--There shall be as the head of the
Commission, a Director who shall be appointed by the President
with the advice and consent of the Senate.
(2) Transfer of offices.--The following officers shall be
transferred from the Executive Office for Immigration Review to
the Office of the Director for the Commission:
(A) Deputy Director.
(B) General Counsel.
(C) Pro Bono Coordinator.
(D) Public Affairs.
(E) Assistant Director of Management Programs.
(F) Equal Employment Opportunity.
(3) Responsibilities.--
(A) The Director shall oversee the administration
of the Commission, and the creation of rules and
regulations affecting the administration of the courts.
(B) The Director shall appoint a Deputy Director to
assist with the duties of the Director and shall have
the power to appoint such administrative assistants,
attorneys, clerks, and other personnel as may be
needed.
(c) Board of Immigration Review.--
(1) In general.--The Board of Immigration Review (referred
to in this section as the ``Board'') shall perform the
appellate functions of the Commission.
(2) Appointment.--The Board shall be composed of a
Chairperson and not less than 14 other immigration appeals
judges, appointed by the President, in consultation with the
Director. The term of office of each member of the Board shall
be 6 years.
(3) Current members.--Each individual who is serving as a
member of the Board on the date of enactment of this Act shall
be appointed to the Board utilizing a system of staggered terms
of appointment based on seniority.
(4) Members.--The Chairperson and each other member of the
Board shall be an attorney in good standing of a bar of a State
or the District of Columbia and shall have at least 7 years of
professional, legal expertise in immigration and nationality
law.
(5) Chairperson duties.--The Chairperson shall--
(A) be responsible, on behalf of the Board, for the
administrative operations of the Board and shall have
the power to appoint such administrative assistants,
attorneys, clerks, and other personnel as may be needed
for that purpose;
(B) direct, supervise, and establish internal
operating procedures and policies of the Board; and
(C) designate a member of the Board to act as
Chairperson in the Chairperson's absence or
unavailability.
(6) Board members duties.--In deciding the cases before the
Board, the Board shall exercise its independent judgment and
discretion and may take any action, consistent with its
authorities under this section and regulations established in
accordance with this section, that is appropriate and necessary
for the disposition of such cases.
(7) Jurisdiction.--The Board shall have--
(A) such jurisdiction as was, prior to the date of
enactment of this Act, provided by statute or
regulation to the Board of Immigration Appeals;
(B) de novo review of any decision by an
immigration judge, and any final order of removal; and
(C) retention of jurisdiction over any case of an
alien removed by the United States if the alien's case
was pending for consideration before the Board prior to
removal of the alien.
(8) Acting in panels.--
(A) In general.--All cases shall be subject to
review by a 3 member panel. The Chairperson shall
divide the Board into 3 member panels and designate a
presiding member of each panel such that--
(i) a majority of the number of Board
members authorized to constitute a panel shall
constitute a quorum for such panel; and
(ii) each panel may exercise the
appropriate authority of the Board that is
necessary for the adjudication of cases before
it.
(B) Final decision.--A final decision of a panel
shall be considered to be a final decision of the
Board.
(9) En banc process.--
(A) In general.--The Board may on its own motion,
by a majority vote of the Board members, or by
direction of the Chairperson, consider any case as the
full Board en banc, or reconsider as the full Board en
banc any case that has been considered or decided by a
3-member panel or by a limited en banc panel.
(B) Quorum.--A majority of the Board members shall
constitute a quorum of the Board sitting en banc.
(10) Decisions of the board.--
(A) In general.--The decisions of the Board shall
constitute final agency action. The precedent decisions
of the Board shall be binding on the Department of
Homeland Security and the immigration judges.
(B) Affirmance without opinion.--Upon
individualized review of a case, the Board may affirm
the decision of an immigration judge without opinion
only if the decision of the immigration judge resolved
all issues in the case. An affirmance without opinion
signifies the Board's adoption of the immigration
judge's findings and conclusion in total.
(C) Notice of appeal.--The decision by the Board
shall include notice to the alien of the alien's right
to file a petition for review in the court of appeals
within 30 days of the date of the decision.
(d) Office of the Chief Immigration Judge.--
(1) Establishment of office.--There is established within
the Commission an Office of the Chief Immigration Judge to
oversee all the immigration courts and their proceedings
throughout the United States. The head of the office shall be
the Chief Immigration Judge who shall be appointed by the
Director.
(2) Duties of the chief immigration judge.--The Chief
Immigration Judge shall be responsible for the general
supervision, direction, and procurement of resources and
facilities, and for the coordination of the schedules of
immigration judges to enable the judges to conduct the various
programs assigned to them. The Chief Immigration Judge may be
assisted by a Deputy Chief Immigration Judge and Assistant
Chief Immigration Judge.
(3) Appointment of immigration judges.--
(A) In general.--Immigration judges shall be
appointed by the Director, in consultation with the
Chief Immigration Judge and the Chair of the Board of
Immigration Review. The term of each immigration judge
shall be 12 years.
(B) Qualifications.--Each immigration judge,
including the Chief Immigration Judge, shall be an
attorney in good standing of a bar of a State or the
District of Columbia and shall have at least 7 years of
professional, legal expertise in immigration and
nationality law.
(C) Current members.--Each individual who is
serving as an immigration judge on the date of
enactment of this Act shall be appointed as an
immigration judge utilizing a system of staggered terms
of appointment based on seniority.
(4) Duties of immigration judges.--In deciding the cases
before them, immigration judges shall exercise their
independent judgment and discretion and may take any action,
consistent with their authorities under this section and
regulations established in accordance with this section, that
is appropriate and necessary for the disposition of such cases.
(5) Jurisdiction and authority of immigration courts.--The
Immigration Courts shall have such jurisdiction as was, prior
to the date of enactment of this Act, provided by statute or
regulation to the Immigration Courts within the Executive
Office for Immigration Review.
(6) Contempt authority.--The contempt authority provided to
immigration judges under section 240(b)(1) of the Immigration
and Nationality Act (8 U.S.C. 1229a(b)(1)) shall--
(A) be implemented by regulation not later than 120
days after the date of enactment of this Act; and
(B) provide that any contempt sanctions, including
any civil money penalty, shall be applicable to all
parties appearing before the immigration judge and
shall be imposed by a single process applicable to all
parties.
(e) Office of the Chief Administrative Hearing Officer.--
(1) In general.--The Office of the Chief Administrative
Hearing Officer shall be headed by a Chief Administrative
Hearing Officer who shall be appointed by the Director.
(2) Duties and responsibilities.--The duties and
responsibilities of the current Office of the Chief
Administrative Hearing Officer shall be transferred to the
Commission.
(f) Removal and Review of Judges.--
(1) In general.--Immigration judges and members of the
Board of Immigration Review may be removed from office only for
good cause--
(A) by the Director, in consultation with the Chair
of the Board, in the case of the removal of a member of
the Board; or
(B) by the Director, in consultation with the Chief
Immigration Judge, in the case of the removal of an
immigration judge.
(2) Independent judgment.--No immigration judge or member
of the Board shall be removed or otherwise subject to
disciplinary or adverse action for their exercise of
independent judgment and discretion as prescribed by
subsections (c)(6) and (d)(4).
(g) Regulations.--Not later than 180 days after the date of
enactment of this Act, the Director shall issue regulations to
implement this section.
TITLE III--EFFECTIVE LAW ENFORCEMENT
SEC. 301. TERMINATION OF THE NSEERS PROGRAM; ESTABLISHMENT OF
REASONABLE PENALTIES FOR FAILURE TO REGISTER.
(a) Termination of NSEERS.--
(1) In general.--The National Security Entry-Exit
Registration System (NSEERS) program administered by the
Secretary of Homeland Security is hereby terminated.
(2) Integrated entry and exit data system.--Nothing in this
section shall amend the Integrated Entry and Exit Data System
established in accordance with section 110 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (8
U.S.C. 1365a).
(3) Administrative closure of removal proceedings.--
(A) In general.--All removal proceedings initiated
against any alien as a result of the NSEERS program
shall be administratively closed. This paragraph shall
apply to all aliens who were--
(i) placed in removal proceedings solely
for failure to comply with the requirements of
the NSEERS program; or
(ii) placed in removal proceedings while
complying with the requirements of the NSEERS
program and--
(I) had a pending application
before the Department of Labor or the
Department of Homeland Security for
which there is a visa available;
(II) did not have a pending
application before the Department of
Labor or the Department of Homeland
Security for which there is a visa available but were eligible for an
immigration benefit; or
(III) were eligible to apply for
other forms of relief from removal.
(B) Exceptions.--This paragraph shall not apply in
cases in which the aliens are removable under--
(i) section 212(a)(3) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)(3)); or
(ii) paragraph (2) or (4) of section 237(a)
of that Act (8 U.S.C. 1227(a)(2) or (4)).
(4) Motions to reopen.--Notwithstanding any limitations
imposed by law on motions to reopen removal proceedings, any
alien who received a final order of removal as a result of the
NSEERS program shall be eligible to file a motion to reopen the
removal proceeding and apply for any relief from removal that
such alien may be eligible to receive.
SEC. 302. EXERCISE OF PROSECUTORIAL DISCRETION.
(a) Sense of Congress Regarding Prosecutorial Discretion.--
(1) Findings.--Congress finds the following:
(A) Exercising prosecutorial discretion is not an
invitation to violate or ignore the law, rather it is a
means by which the resources of the Secretary of
Homeland Security may be used to best accomplish the
mission of the Department of Homeland Security in
administering and enforcing the immigration laws of the
United States.
(B) Although a favorable exercise of discretion by
any office within the Department of Homeland Security
should be respected by other offices of such
Department, unless the facts and circumstances in a
specific case have changed, the exercise of
prosecutorial discretion does not grant lawful status
under the immigration laws, and there is no legally
enforceable right to the exercise of prosecutorial
discretion.
(2) Sense of Congress.--It is the sense of Congress that
the exercise of prosecutorial discretion does not lessen the
commitment of the Secretary of Homeland Security to enforce the
immigration laws to the best of the Secretary's ability.
(b) Prosecutorial Discretion.--The Secretary of Homeland Security
shall exercise prosecutorial discretion in deciding whether to exercise
its enforcement powers against an alien. This discretion includes--
(1) focusing investigative resources on particular offenses
or conduct;
(2) deciding whom to stop, question, and arrest;
(3) deciding whether to detain certain aliens who are in
custody;
(4) settling or dismissing a removal proceeding;
(5) granting deferred action or staying a final removal
order;
(6) agreeing to voluntary departure, permitting withdrawal
of an application for admission, or taking other action in lieu
of removing an alien;
(7) pursuing an appeal; or
(8) executing a removal order.
(c) Factors for Consideration.--The factors that shall be taken
into account in deciding whether to exercise prosecutorial discretion
favorably toward an alien include--
(1) the immigration status of the alien;
(2) the length of residence in the United States of the
alien;
(3) the criminal history of the alien;
(4) humanitarian concerns;
(5) the immigration history of the alien;
(6) the likelihood of ultimately removing the alien;
(7) the likelihood of achieving the enforcement goal by
other means;
(8) whether the alien is eligible or is likely to become
eligible for other relief;
(9) the effect of such action on the future admissibility
of the alien;
(10) current or past cooperation by the alien with law
enforcement authorities;
(11) honorable service by the alien in the United States
military;
(12) community attention; and
(13) resources available to the Department of Homeland
Security.
SEC. 303. CIVIL PENALTIES FOR TECHNICAL VIOLATIONS OF REGISTRATION
REQUIREMENTS.
(a) Registration Penalties.--Section 266(a) of the Immigration and
Nationality Act (8 U.S.C. 1306(a)) is amended by striking ``Any alien''
and all that follows through the period and inserting the following:
``(1) A civil penalty shall be imposed, in accordance with paragraph
(2), on any alien who is required to apply for registration and be
fingerprinted under section 262 or 263, who willfully fails or refuses
to make such application or be fingerprinted, and any parent or legal
guardian required to apply for the registration of any alien who
willfully fails or refuses to file application for the registration of
such alien as required by such section.
``(2) The Secretary of Homeland Security may levy a civil monetary
penalty of up to--
``(A) $100 for a first violation of section 262 or 263;
``(B) $500 for a second violation of section 262 or 263;
and
``(C) $1,000 for each subsequent violation of section 262
or 263 after the second violation.
(b) Other Penalties.--Section 266(b) of the Immigration and
Nationality Act (8 U.S.C. 1306(b)) is amended to read as follows:
``(b)(1) A penalty shall be imposed, in accordance with paragraph
(2), on any alien or the parent or legal guardian in the United States
of any alien who fails to submit written notice to the Secretary of
Homeland Security as required by section 265. penalty shall be imposed
with respect to a failure to submit such notice if the alien
establishes that such failure was reasonably excusable or was
not willful.
``(2) Except as provided in paragraphs (4) and (5), the Secretary
of Homeland Security shall levy a civil monetary penalty of--
``(A) up to $100 against an alien who fails to submit
written notice in compliance with section 265;
``(B) up to $500 against an alien for a second violation of
section 265; and
``(C) up to $1,000 for each subsequent violation of section
265 after the second violation.
``(3) Notwithstanding any other provision of this Act, no change of
immigration status shall result from failure to submit written notice
as required by section 265.
``(4) During the transition period, a failure to comply with
section 265 shall not result in a penalty or a change in immigration
status. At the conclusion of the transition period, the Secretary of
Homeland Security shall collect and maintain statistics concerning all
enforcement actions related to this subsection.
``(5) The penalties imposed under this subsection shall not apply
to an alien who previously failed to submit a change of address prior
to the date of enactment of the Civil Liberties Restoration Act of 2004
or the end of the transition period if the alien submits a change of
address within 6 months after the end of the transition period. A
penalty shall be imposed, in accordance with paragraph (2), on any
alien who fails to submit a change of address within the 6-month period
following the transition period.
``(6) In this subsection, the term `transition period' means the
period beginning on the date of enactment of the Civil Liberties
Restoration Act of 2004 and ending 1 year after the date of enactment
of such Act, at which time the Secretary of Homeland Security shall
implement a system to record and preserve on a timely basis addresses
provided under section 265.''.
SEC. 304. NCIC COMPLIANCE WITH THE PRIVACY ACT.
Data entered into the National Crime Information Center database
must meet the accuracy requirements of section 552a of title 5, United
States Code (commonly referred to as the ``Privacy Act'').
TITLE IV--PROTECTING PRIVACY AND ENSURING DUE PROCESS FOR TARGETS OF
SURVEILLANCE
SEC. 401. MODIFICATION OF AUTHORITIES ON REVIEW OF MOTIONS TO DISCOVER
MATERIALS UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT OF
1978.
(a) Electronic Surveillance.--Section 106(f) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1806(f)) is amended--
(1) in the first sentence, by striking ``shall,'' and
inserting ``may,''; and
(2) by striking the last sentence and inserting the
following new sentence: ``In making this determination, the
court shall disclose, if otherwise discoverable, 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.), portions of the
application, order, or other materials relating to the
surveillance unless the court finds that such disclosure would
not assist in determining any legal or factual issue pertinent
to the case.''.
(b) Physical Searches.--Section 305(g) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1825(g)) is amended--
(1) in the first sentence, by striking ``shall,'' and
inserting ``may,''; and
(2) by striking the last sentence and inserting the
following new sentence: ``In making this determination, the
court shall disclose, if otherwise discoverable, 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.), portions of the
application, order, or other materials relating to the physical
search, or may require the Attorney General to provide to the
aggrieved person, the counsel of the aggrieved person, or both
a summary of such materials unless the court finds that such
disclosure would not assist in determining any legal or factual
issue pertinent to the case.''.
(c) Pen Registers and Trap and Trace Devices.--Section 405(f) of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1845(f))
is amended by striking paragraph (2) and inserting the following:
``(2) 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, if otherwise discoverable, 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.), portions of the application, order, or
other materials relating to the use of the pen register or trap and
trace device, as the case may be, or evidence or information obtained
or derived from the use of a pen register or trap and trace device, as
the case may be.''.
(d) Disclosure of Certain Business Records.--(1) Title V of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.)
is amended--
(A) by redesignating section 502 as section 503; and
(B) by inserting after section 501 the following new
section:
``disclosure of certain business records and items governed by the
classified information procedures act
``Sec. 502. Any disclosure of applications, information, or items
submitted or acquired pursuant to an order issued under section 501, if
such information is otherwise discoverable, shall be conducted under
the procedures and standards provided in the Classified Information
Procedures Act (18 U.S.C. App.).''.
(2) The table of sections for that Act is amended by striking the
item relating to section 502 and inserting the following new items:
``Sec. 502. Disclosure of certain business records and items governed
by the Classified Information Procedures
Act.
``Sec. 503. Congressional oversight.''.
SEC. 402. DATA-MINING REPORT.
(a) Definitions.--In this section:
(1) Data-mining.--The term ``data-mining'' means a query or
search or other analysis of 1 or more electronic databases,
where--
(A) at least 1 of the databases was obtained from
or remains under the control of a non-Federal entity,
or the information was acquired initially by another
department or agency of the Federal Government for
purposes other than intelligence or law enforcement;
(B) the search does not use a specific individual's
personal identifiers to acquire information concerning
that individual; and
(C) a department or agency of the Federal
Government is conducting the query or search or other
analysis to find a pattern indicating terrorist or
other criminal activity.
(2) Database.--The term ``database'' does not include
telephone directories, information publicly available via the
Internet or available by any other means to any member of the
public without payment of a fee, or databases of judicial and
administrative opinions.
(b) Reports on Data-Mining Activities.--
(1) Requirement for report.--The head of each department or
agency of the Federal Government that is engaged in any
activity to use or develop data-mining technology shall each
submit a public report to Congress on all such activities of
the department or agency under the jurisdiction of that
official.
(2) Content of report.--A report submitted under paragraph
(1) shall include, for each activity to use or develop data-
mining technology that is required to be covered by the report,
the following information:
(A) A thorough description of the data-mining
technology and the data that will be used.
(B) A thorough discussion of the plans for the use
of such technology and the target dates for the
deployment of the data-mining technology.
(C) An assessment of the likely efficacy of the
data-mining technology in providing accurate and
valuable information consistent with the stated plans
for the use of the technology.
(D) An assessment of the likely impact of the
implementation of the data-mining technology on privacy
and civil liberties.
(E) A list and analysis of the laws and regulations
that govern the information to be collected, reviewed,
gathered, and analyzed with the data-mining technology
and a description of any modifications of such laws
that will be required to use the information in the
manner proposed under such program.
(F) A thorough discussion of the policies,
procedures, and guidelines that are to be developed and
applied in the use of such technology for data-mining
in order to--
(i) protect the privacy and due process
rights of individuals; and
(ii) ensure that only accurate information
is collected and used.
(G) A thorough discussion of the procedures
allowing individuals whose personal information will be
used in the data-mining technology to be informed of
the use of their personal information and what
procedures are in place to allow for individuals to opt
out of the technology. If no such procedures are in
place, a thorough explanation as to why not.
(H) Any necessary classified information in an
annex that shall be available to the Committee on
Governmental Affairs, the Committee on the Judiciary,
and the Committee on Appropriations of the Senate and
the Committee on Homeland Security, the Committee on
the Judiciary, and the Committee on Appropriations of
the House of Representatives.
(3) Time for report.--Each report required under paragraph
(1) shall be--
(A) submitted not later than 90 days after the date
of enactment of this Act; and
(B) updated once a year and include any new data-
mining technologies.
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