Security and Freedom Ensured Act (SAFE Act) (H.R. 1526) and Security and Freedom Enhancement Act (SAFE Act) (S. 737): Section by Section Analysis
CRS Report for Congress
Security and Freedom Ensured Act
(SAFE Act)(H.R. 1526) and
Security and Freedom Enhancement Act
(SAFE Act)(S. 737):
Section By Section Analysis
May 9, 2005
Charles Doyle
Senior Specialist
American Law Division
Congressional Research Service ˜ The Library of Congress
Security and Freedom Ensured Act (SAFE Act)(H.R.
1526) and Security and Freedom Enhancement Act
(SAFE Act)(S. 737): Section By Section Analysis
Summary
Two SAFE Acts, S. 737 and H.R. 1526 address some of the issues raised by the
USA PATRIOT Act. They amend the Foreign Intelligence Surveillance Act (FISA)
to require that FISA surveillance orders particularly identify either the target or the
facilities or places targeted. They limit delayed notification of sneak and peek
searches to cases involving exigent circumstances (injury, flight, destruction of
evidence, witness intimidation risks) and cap the extent of permissible delay. Both
bills restrict FISA access orders to instances where there are specific and articulable
reasons to believe that the records pertain to a foreign power or one or more of its
agents.
S. 737 alone provides that the order may be no more sweeping than a grand jury
subpoena duces tecum issued in the context of an espionage or international terrorism
investigation. It also adds: exceptions and time limits to the nondisclosure feature,
a procedure to allow a recipient to quash or modify an order, and use provisions
comparable to those that apply to the use of information generated by FISA
surveillance and physical search orders. H.R. 1526 exempts libraries from the
national security letter (nsl) coverage of 18 U.S.C. 2709, and adds section 505 of the
USA PATRIOT Act to the list of provisions that expire on December 31, 2005. S.
737 rewrites each of the four nsl statutes with enhanced standards, time limits, gag
order restrictions, scope, and suppression features.
Both bills incorporate the definition of federal crimes of terrorism into the
definition of domestic terrorism.
S. 737 expands the safeguards associated with the court approved use of pen
registers and trap and trace devices. H.R. 1526 adds four sections to the inventory
of expiring USA PATRIOT Act sections (213 (delayed notice of sneak and peek
searches), 216 (trap and trace devices and pen registers for law enforcement purpose),
219 (boundless service of terrorism search warrants), and 505 (national security
letters)). S. 737 amends FISA to require more extensive public reports concerning its
use.
This report appears in abridged form as CRS Report RS22140, The SAFE Acts
of 2005: H.R. 1526 and S. 737 — A Sketch.
Contents
In troduction ......................................................1
Section 1. Short Title...........................................1
Section 2. Limitation on Roving Wiretaps Under Foreign Intelligence
Surveillance Act of 1978....................................2
Proposed Amendment of 50 U.S.C. 1805(c).....................2
Section 3. Limitations on Delayed Notice Search Warrants..............2
A. In General.............................................2
B. Reports...............................................3
Section 4. Privacy Protections for Library, Bookseller, and Other Personal
Records Under Foreign Intelligence Surveillance Act of 1978.......3
A. In General.............................................3
B. Oversight..............................................4
C. Amendments Unique to S. 737.............................4
Section 5. (H.R. 1526: Privacy Protections for Computer Users at
Libraries Under National Security Authority/ S. 737:
Procedural Protections for National Security Letters)..............4
In General................................................4
H.R. 1526................................................5
S. 737...................................................5
Section 6. Modification of Definition of Domestic Terrorism
(H.R. 1526; Section 7 in S. 737)...............................6
Section 6. (S. 737 only) Privacy Protections for Pen Registers and
Trap and Trace Devices.....................................7
A. In General.............................................7
B. H.R. 1526.............................................7
C. S. 737.................................................7
Section 7. (H.R. 1526 only) Extension of Patriot Sunset Provision........8
A. In General.............................................8
B. Boundless Terrorist Search Warrants........................8
Section 8. (S. 737 only) Public Reporting of the Foreign
Intelligence Surveillance Act of 1978...........................9
Appendix .......................................................10
Security and Freedom Ensured Act of 2005
(SAFE Act)(H.R. 1526) and Security and
Freedom Enhancement Act of 2005 (SAFE
Act)(S. 737): Section By Section Analysis
Introduction
Somewhat different SAFE Acts have been introduced in both the House and
Senate: S. 737, the Security and Freedom Enhancement Act of 2005 (introduced by
Senator Craig) and H.R. 1526, the Security and Freedom Ensured Act of 2005
(introduced by Representative Otter).1 Although the Senate bill is more detailed, they
address many of the same issues, most of which relate to the USA PATRIOT Act —
roving Foreign Intelligence Surveillance Act (FISA) wiretaps, delayed notification
of “sneak and peek” search warrants, library and similar exemptions from FISA
tangible item orders and communications related to national security letters, the
definition of “domestic terrorism,” and expansion of the sunset provisions of the
USA PATRIOT Act.2
Section 1. Short Title.
Section 1 of the bills contains their short titles, the “Security and Freedom
Ensured Act of 2005 (SAFE) Act” in the case of H.R. 1526; and “Security and
Freedom Enhancement Act of 2005” or “SAFE Act” in the case of S. 737.
1 A discussion of a third SAFE Act, H.R. 1243 (the Secure Access to Firearms
Enhancement Act of 2005) (introduced by Representative Hostettler), which deals with
concealed firearm possession is beyond the scope of this report, as is a discussion of otherth
bills in the 109 Congress which to a greater or lesser extent contain proposals similar to
those found in S. 737 and H.R. 1526, see e.g., S. 316 (Reasonable Notice and Search Act),
S. 693 (Electronic Communications Privacy Judicial Review and Improvement Act of 2005),
H.R. 1157 (Freedom to Read Protection Act of 2005), H.R. 1502 (Civil Liberties
Restoraiton Act of 2005).
2 For additional background information see CRS Report RS21743, Analysis of S. 1709,
108th Congress: the Security and Freedom Ensured Act of 2003 (SAFE Act); CRS Report
RL30465, The Foreign Intelligence Surveillance Act: An Overview of the Statutory
Framework and Recent Judicial Decisions; CRS Report RL32186, USA PATRIOT Act
Sunset: Provisions That Expire on December 31, 2005, (abridged as CRS Report RS21704);
CRS Report RL31377, The USA PATRIOT Act: A Legal Analysis, (abridged as CRS Report
RS21203); and CRS Report RL31200, Terrorism: Section by Section Analysis of the USA
PATRIOT Act.
Section 2. Limitation on Roving Wiretaps Under Foreign
Intelligence Surveillance Act of 1978.
Proposed Amendment of 50 U.S.C. 1805(c). The Foreign Intelligence
Surveillance Act (FISA) permits federal judges assigned to serve on the Foreign
Intelligence Surveillance Court to issue orders authorizing, for foreign intelligence
gathering purposes, electronic surveillance (wiretapping), 50 U.S.C. 1801-1811;
physical searches, 50 U.S.C. 1821-1829; the use of trap and trace devices and pen
registers (surreptitious caller id devices), 50 U.S.C. 1841-1846; and access to
tangible items (particularly business records), 50 U.S.C. 1861-1862.
Subsection 1805(c) describes the specifications and directions for FISA
electronic surveillance orders. Before 9/11, FISA electronic surveillance orders
specified (1) the identity, if known, or the description of the target of the surveillance,
50 U.S.C. 1805(c)(1)(A)(2000 ed.)(emphasis added), (2) the nature and location of
the facilities or places at which the surveillance was directed, 50 U.S.C.
1805(c)(1)(B)(2000 ed.) and (3) if requested, the identity of communications
providers, landlords and other person whose assistance would facilitate execution of
the order, 50 U.S.C. 1805(c)(2)(B)(2000 ed.).
Section 206 of the USA PATRIOT Act temporarily altered this third feature to
permit a general command for third party assistance without identifying a specific
person, if the target of the order regularly changed telephones or meeting places or
took other evasive steps in order to thwart surveillance efforts, 50 U.S.C.
1805(c)(2)(B). The intelligence authorization act for 2002 altered the second feature
to require identification of the nature and location of targeted facilities and places
only if they were known, 50 U.S.C. 1805(c)(1)(B). Thus, at least temporarily, FISA
surveillance orders may be issued that simply describe the target but do not otherwise
identify the target, the facilities or places to be targeted, or those communications
providers or others whose assistance will be commanded to facilitate execution of the
order.
Both the House and Senate bills amend subsection 1805(c) to require that FISA
surveillance orders identify either the target or the facilities or places targeted; orders
merely describing the target because the target’s identity is unknown must identify
the facilities or places targeted and orders that do not identify the facilities or places
because they are unknown must identify the target. If the facilities or places cannot
be identified in the order, both bills limit execution of a FISA surveillance order to
times when the target is present at the facility or place under surveillance.
Section 3. Limitations on Delayed Notice Search Warrants.
A. In General. The Fourth Amendment to the United States Constitution
prohibits unreasonable searches and seizures, U.S.Const. Amend. IV. The
Amendment does not apply when there is no reasonable expectation of privacy with
respect to the item seized, such as information or other property in the possession of
a third party for example, United States v. Miller, 425 U.S. 435 (1976)(a customer
has no expectation of privacy with respect to the records of his financial transactions
subpoenaed from the customer’s bank). Yet where a reasonable expectation of
privacy exists and subject to certain exigent circumstances, the Fourth Amendment
requires officers executing a search warrant to knock and announce their purpose
before entering to execute the warrant, Richards v. Wisconsin, 520 U.S. 385 (1997);
Wilson v. Arkansas, 514 U.S. 927 (1995). Prior to the USA PATRIOT Act, the
Federal Rules of Criminal Procedure which implement the Amendment, instructed
officers to leave a notice of the search and an inventory of any items seized at the
location where the search occurred, F.R.Crim.P. 41(d)(2000 ed.). The lower federal
appellate courts were divided over whether failure to provide notification should be
treated as a violation of the Rule or as a constitutional violation; and they likewise
could not agree on how long notification might be postponed when exigent
circumstances justified delayed notification, United States v. Freitas, 800 F.2d 1451
(9th Cir. 1986); United States v. Pangburn, 983 F.2d 449 (2d Cir. 1993); United
States v. Simmons, 206 F.3d 392 (4th Cir. 2000).
Federal law permits delayed notification to customers of government access to
their communications stored with service providers, 18 U.S.C. 2705, 2703(b) — a
situation under which there may well be no judicially recognized reasonable
expectation of privacy. The law limits delays to instances where contemporaneous
disclosure would have adverse consequences. The list of adverse consequences
includes factors traditionally recognized as exigent circumstances for Fourth
Amendment purposes (risk of injury or flight, of the destruction of evidence, or of
the intimidation of a potential witness) and two factors which probably would not be
thought to constitute exigent circumstances (seriously jeopardize an investigation or
unduly delay a trial), 18 U.S.C. 2705(a)(2), (b).
Section 213 of the USA PATRIOT Act amends 18 U.S.C. 3103a to permit
delayed notification of the execution of a search warrant or court order for a
reasonable time in presence of any of the adverse conditions listed in 18 U.S.C. 2705,
The two bills amend subsection 3103a(b) first to limit the grounds justifying
delay to those that can be considered exigent circumstances (injury, flight,
destruction of evidence, witness intimidation risks) and second to confine the period
of delay to no more than 7 days (with the possibility of 21-day extensions).
B. Reports. The bills direct the Attorney General to issue a public report
every six months documenting the number of notify postponements and extensions
requested and granted or denied, proposed 18 U.S.C. 3103a(c). The Senate bill also
insists that the report identify the nature of the crimes that have given rise to
subsection 3103a(b) requests, proposed 18 U.S.C. 3103a(c)(2)(C).
Section 4. Privacy Protections for Library, Bookseller, and
Other Personal Records Under Foreign Intelligence
Surveillance Act of 1978.
A. In General. Before the USA PATRIOT Act, FISA authorized judges and
magistrates of the FISA court to issue orders affording the Federal Bureau of
Investigation (FBI) access to certain business records during the course of gathering
foreign intelligence information or investigating international terrorism, 50 U.S.C.
for a belief that the subject of the business records was a foreign power or the agent
of a foreign power, 50 U.S.C. 1862(b)(2)(B)(2000 ed.). The orders could be
addressed to any transportation common carrier, public accommodation provider,
storage facility or vehicle rental business, 50 U.S.C. 1862(d)(1)(2000 ed.), and
recipients could not disclose them except to the extent necessary to provide access
to the records, 50 U.S.C. 1862(d)(2)(2000 ed.).
Section 215 of the USA PATRIOT Act temporarily rewrote this portion of
FISA, 50 U.S.C. 1861-1862. In the form scheduled to sunset on December 31, 2005,
FISA court orders are available for FBI access to “any tangible things (including
books, records, papers, documents, and other items)” without regard to whether they
pertain to a foreign power or any of its agents as long as access is sought to obtain
foreign intelligence information (not concerning a United States person) or to protect
against international terrorism or clandestine intelligence activities, 50 U.S.C.
1861(a)(1). Section 215 kept the nondisclosure feature and granted recipients
protection from civil liability for compliance with a FISA order, 50 U.S.C.
Both bills restrict the temporary FISA tangible things access orders to instances
where there are specific and articulable reasons to believe that the records pertain to
a foreign power or one or more of its agents, proposed 50 U.S.C. 1861(b),(c). The
Senate bill alone provides that the order may be no more sweeping than a grand jury
subpoena duces tecum issued in the context of an espionage or international terrorism
investigation (i.e., it must yield to federally recognized privileges and may not be
unreasonable or oppressive), proposed 50 U.S.C. 1861(c)(3). The Senate bill also
calls for the order to include notice of the recipient rights that the bill provides,
proposed 50 U.S.C. 1861(c)(4).
B. Oversight. Both bills add the House and Senate Judiciary Committees to
the Congressional authorities that the Attorney General must keep apprised of the
extent of the FBI’s use of the FISA access order authority, 50 U.S.C. 1862.
C. Amendments Unique to S. 737. The Senate bill adds: (1) exceptions
and 180 day time limits to the nondisclosure feature (with the possibility of 180 day
extensions), (2) a procedure to allow a recipient to quash or modify an order, and (3)
use provisions comparable to those that apply to the use of information generated by
FISA surveillance and physical search orders, proposed 50 U.S.C. 1861(d), (f), (g).
H.R. 1526 has no comparable provisions.
Section 5. (H.R. 1526: Privacy Protections for Computer
Users at Libraries Under National Security Authority/ S. 737:
Procedural Protections for National Security Letters).
In General. Four statutes vest federal intelligence officials with the power to
demand production of certain information directly rather than invoke the power of
a FISA court judge to secure access. These national security letter statutes are:
18 U.S.C. 2709
(FBI request to wire or electronic communications service providers for customer
name, address, length of service, and local and long distance toll billing records)
12 U.S.C. 3414
(FBI request to financial institutions for records relating to customer
transactions)
15 U.S.C. 1681u
(FBI request to consumer reporting agencies for consumer name, address, former
address, places of employment, former places of employment, and names and
addresses of financial institutions with whom a customer has an account)
15 U.S.C. 1681v
(government agency request to consumer reporting agencies for consumer and
all other information in the agency’s files)
Although they vary somewhat, these statutes generally have no explicit
enforcement mechanism nor any means for a recipient to have a request modified or
set aside, bar disclosure by recipients of the requests, and have no uniform provisions
concerning use of the information provided in response to the request.
Section 505 of the USA PATRIOT Act amended three of the four provisions (18
U.S.C. 2709, 12 U.S.C. 3414, 15 U.S.C. 1681u) and section 358 created the fourth
(18 U.S.C. 1681v). Each of the amendments (1) made it clear that the request did not
have to come from FBI headquarters but could be issued by any of the agents in
charge of the various FBI field offices; (2) substituted a relevancy issuance standard
for the earlier reason to believe standard; (3) dropped the requirement that the records
sought pertain to a foreign power or its agents; and (4) asserted that access could not
be sought in connection with an investigation based solely on an American’s exercise
of his First Amendment rights.
In a case now on appeal, one federal district court found that the manner of
exercising the national security letter authority under 18 U.S.C. 2709 violated both
the Fourth and the First Amendments, the Fourth because of the want of judicial
supervision or review and the First because of the facially all encompassing,
permanent form of the gag order, Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y.
H.R. 1526. The bills treat the national security letter statutes differently. H.R.
1526 simply exempts libraries from the coverage of 18 U.S.C. 2709 (“a library shall
not be treated as a wire or electronic communication service provider for purposes
of this section”), proposed 18 U.S.C. 2709(a)(2). Later in the bill, it adds section 505
of the USA PATRIOT Act with its amendments to the national security letter statutes
(18 U.S.C. 2709, 12 U.S.C. 3414, and 15 U.S.C. 1681u) to the list of USA PATRIOT
Act provisions that expire on December 31, 2005.
S. 737. The Senate makes no such addition to the list of terminating sections
nor does it exempt libraries per se from any of national security letter statutes.
Instead it rewrites each of the statutes in much the same way it rewrites the FISA
access order provisions. Within each of the national security letter statutes, it:
- reestablishes the demand that the information sought be based on specific and
articulable facts that suggest that the information sought pertains to a foreign
power or one or more of its agents;
- sets a 90 day time limit for the gag orders based on exigent circumstances
(with the possibility of 180 day extensions available from the court on the same
basis);
- permits recipients to challenge both the request and gag orders in court;
- holds the letters to same standards that apply to grand jury subpoenas duces
tecum issued in espionage or international terrorism cases (i.e., they must yield
to federally recognized privileges and may not be unreasonable or oppressive);
- explicitly permits disclosure to those necessary to comply with the request and
to the recipient’s attorney; and
- establishes a procedure for use and suppression of evidence generated by the
letters.
Section 6. Modification of Definition of Domestic Terrorism
(H.R. 1526; Section 7 in S. 737).
Federal law employs two terrorism-related definitions fairly extensively. The
first defines “federal crimes of terrorism” by listing a series of specific federal
offenses likely to be committed for terrorist purposes, 18 U.S.C. 2332b(g)(5)(text is
appended). The second defines “domestic terrorism” generically rather than by
reference to any specific federal crime, 18 U.S.C. 2331(5):
As used in this chapter . . . (5) the term “domestic terrorism” means
activities that — (A) involve acts dangerous to human life that are a violation of
the criminal laws of the United States or of any State; (B) appear to be intended
— (i) to intimidate or coerce a civilian population; (ii) to influence the policy of
a government by intimidation or coercion; or (iii) to affect the conduct of a
government by mass destruction, assassination, or kidnapping; and (C) occur
primarily within the territorial jurisdiction of the United States.
Neither domestic terrorism or a federal crime of terrorism is a separate crime.
They are used for purposes of cross reference. Thus for example, a federal crime of
terrorism as defined in 18 U.S.C. 2332b(g)(5)(B) that involves the risk of serious
injury to another person is not subject to the usual statute of limitations and may be
prosecuted at any time, 18 U.S.C. 3286(b). Similarly, property derived from and
used to facilitate international or domestic terrorism as defined by 18 U.S.C. 2331 is
subject to confiscations, 18 U.S.C. 982(a)(1)(G).
Both bills amend 18 U.S.C. 2331(5) so as to merge the two definitions, “As
used in this chapter . . . (5) the term ‘domestic terrorism’ means activities that — (A)
involve acts dangerous to human life that constitute a Federal crime of terrorism (as
that term is defined in section 2332b(g)(5) of this title); and (B) occur primarily
within the territorial jurisdiction of the United States.”
H.R. 1526 contains an additional provision that emphasizes that nothing in
section 2331 should be construed to preclude enforcement of state terrorism laws;
S. 737 has no comparable provision.
Section 6. (S. 737 only) Privacy Protections for Pen Registers
and Trap and Trace Devices.
A. In General. Trap and trace devices and pen registers are essentially
surreptitious “caller id” devices that track the source and destination of incoming and
outgoing telephone calls to and from a particular telephone. The Supreme Court has
held that their use does not offend any Fourth Amendment protected expectation of
privacy, Smith v. Maryland, 442 U.S. 735 (1979). Federal law contains procedures
under which authorities may secure judicial approval for the installation and use of
trap and trace devices and pen registers in both a law enforcement and an intelligence
gathering (FISA) context, 18 U.S.C. 3121-3127; 50 U.S.C. 1841-1846.
Section 216 and 214 of the USA PATRIOT Act amended the law enforcement
and FISA procedures to apply to e-mail and other forms of Internet and electronic
communications, 18 U.S.C. 3121(c), 3123(a), (b), 3127; 50 U.S.C. 1842, 1843. The
law enforcement amendment requires a report to the issuing court on the specifics on
the use of the devices in connection with an Internet communication, 18 U.S.C.
3123(a)(3). The FISA amendment precludes use of the authority in connection with
an investigation predicated solely on the exercise of an American target’s First
Amendment rights, 50 U.S.C. 1842, 1843. The FISA amendment expires on
December 31, 2005; the law enforcement amendment does not, §224, P.L. 107-56,
B. H.R. 1526. Section 7 of the House bill adds section 216, the law
enforcement amendment, to the list of USA PATRIOT Act sections that expire on
December 31, 2005.
C. S. 737. The Senate bill amends both the FISA and the law enforcement
procedure to require applicants to include a statement of the specific and articulable
facts that give rise to their belief that installation and use of the devices will produce
evidence relevant to a criminal investigation, proposed 50 U.S.C. 1842(c); proposed
18 U.S.C. 3122(b)(2). It expands the annual law enforcement reporting requirement
to include more specific information concerning the use of the devices and directs
that report be made publicly, proposed 18 U.S.C. 3126. And it establishes a new
notice provision in the law enforcement procedure for the benefit of those whose
interests are implicated by use of the device, proposed 18 U.S.C. 3123(e).
Section 7. (H.R. 1526 only) Extension of Patriot Sunset
Provision.
A. In General. Section 224 of the USA PATRIOT Act creates an expiration
date (December 31, 2005) for the sections found in Title II of the Act, but exempts
from termination several including sections 213 (delayed notification of the
execution of search warrant (sneak and peek warrants)), 216 (use of trap and trace
devices and pen registers for law enforcement purpose), 219 (nation-wide service of
terrorism search warrants). H.R. 1526 removes the exemption for these three
sections so that they too expire on December 31, 2005. It also marks section 505
(national security letter amendments) for expiration at that time.
Although it has no similar provision, S. 737 addresses many of the same
concerns, as noted earlier, in section 3 (relating to section 213 and limiting the
justifications of delayed notification to exigent circumstances and establishing 7 day
and 21 day caps for the initial period of delay and any subsequent extensions); in
section 6 (relating to section 216 and providing for participant notice in law
enforcement trap and trace device and pen register cases; public reports on use of the
authority; and presentation of the facts giving specific and articulable justification for
the orders); and in section 5 (relating to section 505 and providing for general
adjustments in the national security letter statutes).
B. Boundless Terrorist Search Warrants. In most instances federal
judges may only issue search warrants to be executed in their own judicial districts,3
F.R.Crim.P. 41, but in cases of international or domestic terrorism section 219 of the
USA PATRIOT Act allows judges in any district where related activities have
occurred to issue search warrants that may be executed “within or outside the
district,” F.R.Crim.P. 41(a)(3). Under H.R. 1526, section 219 sunsets on December
3 As amended by section 6 of H.R. 1526 and section 7 of S. 737, international and domestic
terrorism are defined in 18 U.S.C. 2331 as follows: “(1) the term ‘international terrorism’
means activities that — (A) involve violent acts or acts dangerous to human life that are a
violation of the criminal laws of the United States or of any State, or that would be a
criminal violation if committed within the jurisdiction of the United States or of any State;
(B) appear to be intended — (i) to intimidate or coerce a civilian population; (ii) to influence
the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a
government by mass destruction, assassination, or kidnapping; and (C) occur primarily
outside the territorial jurisdiction of the United States, or transcend national boundaries in
terms of the means by which they are accomplished, the persons they appear intended to
intimidate or coerce, or the locale in which their perpetrators operate or seek asylum . . . (5)
the term ‘domestic terrorism’ means activities that — (A) involve acts dangerous to human
life that constitute a Federal crime of terrorism (as that term is defined in section
2332b(g)(5) of this title); and (B) occur primarily within the territorial jurisdiction of the
United States.” This text of 18 U.S.C. 2332b(g)(5) is appended.
Section 8. (S. 737 only) Public Reporting of the Foreign
Intelligence Surveillance Act of 1978.
The intelligence reform legislation passed at the end of the 108th Congress,
amended FISA directing the Attorney General to report — in a manner consistent
with the protection of national security — to the Congressional Judiciary and
Intelligence Committees semi-annually on the extent of FISA use, interpretation of
the Act by the FISA court, and copies of the FISA court opinions, 50 U.S.C. 1871.
S. 737 amends section 1871 to require that the reports be made public, confines
the instruction that the report be made in a manner consistent with the protection of
national security to information relating to FISA court opinions, but permits the
Attorney General to redact for the protection of national security portions of the
publicly released opinions. H.R. 1526 has no comparable provisions.
Appendix
18 U.S.C. 2332b
* * *
(g) Definitions. — As used in this section . . .
(5) the term “Federal crime of terrorism” means an offense that — (A) is
calculated to influence or affect the conduct of government by intimidation or
coercion, or to retaliate against government conduct; and
(B) is a violation of — (i) section 32 (relating to destruction of aircraft or
aircraft facilities), 37 (relating to violence at international airports), 81 (relating to
arson within special maritime and territorial jurisdiction), 175 or 175b (relating to
biological weapons), 175c (relating to variola virus), 229 (relating to chemical
weapons), subsection (a), (b), (c), or (d) of section 351 (relating to congressional,
cabinet, and Supreme Court assassination and kidnaping), 831 (relating to nuclear
materials), 842(m) or (n) (relating to plastic explosives), 844(f)(2) or (3) (relating to
arson and bombing of Government property risking or causing death), 844(i) (relating
to arson and bombing of property used in interstate commerce), 930(c) (relating to
killing or attempted killing during an attack on a Federal facility with a dangerous
weapon), 956(a)(1) (relating to conspiracy to murder, kidnap, or maim persons
abroad), 1030(a)(1) (relating to protection of computers) , 1030(a)(5)(A)(i) resulting
in damage as defined in 1030(a)(5)(B)(ii) through (v) (relating to protection of
computers), 1114 (relating to killing or attempted killing of officers and employees
of the United States), 1116 (relating to murder or manslaughter of foreign officials,
official guests, or internationally protected persons), 1203 (relating to hostage
taking), 1361 (relating to government property or contracts), 1362 (relating to
destruction of communication lines, stations, or systems), 1363 (relating to injury to
buildings or property within special maritime and territorial jurisdiction of the United
States), 1366(a)(relating to destruction of an energy facility), 1751(a), (b), (c), or (d)
(relating to Presidential and Presidential staff assassination and kidnaping), 1992
(relating to wrecking trains), 1993 (relating to terrorist attacks and other acts of
violence against mass transportation systems), 2155 (relating to destruction of
national defense materials, premises, or utilities), 2156 (relating to national defense
material, premises, or utilities), 2280 (relating to violence against maritime
navigation), 2281 (relating to violence against maritime fixed platforms), 2332
(relating to certain homicides and other violence against United States nationals
occurring outside of the United States), 2332a (relating to use of weapons of mass
destruction), 2332b (relating to acts of terrorism transcending national boundaries),
2332f (relating to bombing of public places and facilities), 2332g (relating to missile
systems designed to destroy aircraft), 2332h (relating to radiological dispersal
devices, 2339 (relating to harboring terrorists), 2339A (relating to providing material
support to terrorists), 2339B (relating to providing material support to terrorist
organizations), 2339C (relating to financing of terrorism, or 2340A (relating to
torture) of this title;
(ii) sections 92 (relating to prohibitions governing atomic weapons) or 236
(relating to sabotage of nuclear facilities or fuel) of the Atomic Energy Act of 1954
(42 U.S.C. 2122 or 2284); or
(iii) section 46502 (relating to aircraft piracy), the second sentence of section
46504 (relating to assault on a flight crew with a dangerous weapon), section
human life by means of weapons, on aircraft), section 46506 if homicide or attempted
homicide is involved (relating to application of certain criminal laws to acts on
aircraft), or section 60123 ( b) (relating to destruction of interstate gas or hazardous
liquid pipeline facility) of title 49.