Yeh, Brian T.

UNT Digital Library

1  This report examines the provisions of S. 2271 as introduced.2  Section 2 of S. 2271 indicates that the bill amends the specified sections of FISA and the NSLstatutes after they are to be amended by H.R. 3199. Congressional Research Service ˜ The Library of CongressCRS Report for CongressReceived through the CRS WebOrder Code RS22384Updated February 21, 2006USA PATRIOT Act Additional Reauthorizing  Amendments Act of 2006 (S. 2271)Brian T. YehLegislative AttorneyAmerican Law DivisionSummaryThe USA PATRIOT Improvement and Reauthorization Act of 2005, H.R. 3199,as reported by the conference committee, H.Rept. 109-333 (2005), and agreed to by theHouse on December 14, 2005, raises the concern of several members of the Senateregarding its protection of civil liberties.  To provide the Senate with additional time toconsider the conference bill, the 109th Congress enacted legislation delaying the sunseton certain provisions of the USA PATRIOT Act from December 31, 2005, to February3, 2006 (P.L. 109-160), and then approved another extension of the sunset to March 10,2006 (P.L. 109-170).On February 10, 2006, the USA PATRIOT Act Additional ReauthorizingAmendments Act of 2006, S. 2271, was introduced in the Senate.  S. 22711 amends theForeign Intelligence Surveillance Act (FISA) and the five federal statutes providingnational security letter (NSL) authority to federal intelligence investigators2 in thefollowing manner: (1) it grants recipients of a Section 215 order the express right topetition a FISA judge to modify or quash the nondisclosure requirement thataccompanies such an order; (2) it removes the requirement that recipients of Section 215orders or recipients of NSLs must provide the FBI or the authorized governmentauthority with the name of the attorney they consulted to obtain legal advice concerningthe production order or the NSL; and (3) it clarifies that libraries, the services of whichinclude offering patrons access to the Internet, are not subject to NSLs, unless they arefunctioning as electronic communication service providers.Portions of this report are drawn from CRS Report RL33239, USA PATRIOTImprovement and Reauthorization Act of 2005 (H.R. 3199): A Legal Analysis of theConference Bill, and CRS Report RS22348, USA PATRIOT Improvement andReauthorization Act of 2005 (H.R. 3199): A Brief Look.CRS-23 P.L. 107-56.4 50 U.S.C. 1861(a)(1).5 50 U.S.C. 1861(d).  However, the conference bill clarifies that a recipient of a Section 215 ordermay disclose its existence to an attorney to obtain legal advice, as well as to other personsapproved by the FBI, proposed 50 U.S.C. 1861(d)(1)(B), (C).6 Section 106(f) of the conference bill, adding proposed 50 U.S.C. 1861(f)(1), proposed 50 U.S.C.1803(e)(1) and proposed 50 U.S.C. 1803(e)(2).7 152 CONG. REC. S1326 (daily ed. Feb. 15, 2006) (statement of Sen. Sununu) (“I think it isimportant that we stand for the principle that a restriction on free speech such as a gag order canbe objected to in a court of law before a judge.  You can at least have your case heard.  That doesnot mean you will win, necessarily, but you can at least have your case heard.”). 8 Proposed 18 U.S.C. 3511(b)(2)-(3).9 By contrast, the conference bill does not impose a one-year moratorium on challenging thenondisclosure order accompanying a NSL, proposed 18 U.S.C. 3511(b)(1).Judicial Review of the Section 215 Nondisclosure RequirementSection 215 of the USA PATRIOT Act3 amended the business record sections ofFISA to authorize the Director of the Federal Bureau of Investigation (FBI), or a designeeof the Director, to apply to the FISA court to issue orders granting the government accessto any tangible item (including books, records, papers, and other documents), no matterwho holds it, in foreign intelligence, international terrorism, and clandestine intelligencecases.4  A Section 215 order is accompanied by a nondisclosure requirement that prohibitsthe recipient from disclosing to any other person that the FBI has sought the tangiblethings described in the order, except to those persons necessary for compliance.5  Undercurrent law, the recipient of a Section 215 production order lacks an explicit statutoryright to petition the FISA court to modify or set aside either the production order or thenondisclosure requirement.The conference bill accompanying the USA PATRIOT Improvement andReauthorization Act of 2005, H.R. 3199 [hereinafter “conference bill”], provides ajudicial review process for recipients of Section 215 orders to challenge their legality witha specified pool of FISA court judges.6  However, the conference bill does not expresslygrant to recipients of such orders the right to petition the FISA court to modify or quashthe nondisclosure requirement imposed in connection with the production order.  Theconference bill has been criticized for its lack of an express right to challenge thenondisclosure order.7Section 3 of S. 2271 addresses this omission by establishing a judicial reviewprocedure for Section 215 nondisclosure orders that largely resembles the procedure setforth in the conference bill for challenging the nondisclosure order accompanying anNSL:8! For one year after the date of the issuance of a Section 215 productionorder, the nondisclosure requirement remains in full effect and may notbe challenged.9CRS-310 Proposed 50 U.S.C. 1861(f)(2)(A)(i).11 Proposed 50 U.S.C. 1861(f)(2)(A)(ii).12 Proposed 50 U.S.C. 1861(f)(2)(A)(ii), proposed 50 U.S.C. 1803(e)(2).13 Proposed 50 U.S.C. 1861(f)(2)(C)(i). 14 Proposed 50 U.S.C. 1861(f)(2)(C)(ii).15 Proposed 50 U.S.C. 1861(f)(2)(A)(iii).16 Proposed 50 U.S.C. 1861(f)(2)(C)(iii).17 Proposed 50 U.S.C. 1861(f)(3).18 Id.! After this one-year period has expired, the recipient of the productionorder may petition the FISA court to modify or set aside thenondisclosure requirement.10! Within 72 hours, if the judge assigned to consider the petition determinesafter an initial review that the petition is frivolous, the judge shallimmediately deny the petition and affirm the nondisclosure order.11! If, after the initial review, the judge determines that the petition is notfrivolous, the judge shall promptly consider the petition under proceduralmeasures that the FISA court has established to protect national security,including conducting the review in camera.12! The judge has discretion to modify or set aside a nondisclosure orderupon a finding that there is no reason to believe that disclosure mayendanger the national security of the United States; interfere with acriminal, counterterrorism, or counterintelligence investigation; interferewith diplomatic relations; or endanger the life or physical safety of anyperson.13! If, at the time the individual files the petition for judicial review of anondisclosure order, the Attorney General, Deputy Attorney General, anAssistant Attorney General, or the Director of the FBI certifies thatdisclosure may endanger the national security of the United States orinterfere with diplomatic relations, then the FISA judge must treat suchgovernment certification as conclusive unless the judge finds that thecertification was made in bad faith.14! If the judge grants a petition to quash the nondisclosure requirement,upon the request of the government, such order is stayed pending reviewof the decision to the FISA Court of Review.15! If the judge denies the petition to modify or set aside the nondisclosurerequirement, the recipient of the Section 215 order is precluded fromfiling another such petition for one year.16! The FISA Court of Review has jurisdiction to consider a petition by thegovernment or by the recipient of a Section 215 order and to review aFISA judge’s decision to affirm, modify, or set aside such productionorder or the nondisclosure order imposed in connection with it.17  TheU.S. Supreme Court has jurisdiction to review a decision of the FISACourt of Review concerning this matter.18CRS-419 Five federal statutes, in roughly the same terms, authorize federal intelligence investigators(generally the FBI) to request that communications providers, financial institutions, and creditbureaus provide certain customer information relating to a national security investigation.  Thesestatutes are 12 U.S.C. 3414; 15 U.S.C.1681u; 15 U.S.C. 1681v; 18 U.S.C. 2709; 50 U.S.C. 436.20 Proposed 50 U.S.C. 1861(d)(1)(B), (C); proposed 18 U.S.C. 2709(c)(1); proposed 15 U.S.C.1681u(d)(1); proposed 15 U.S.C. 1681v(c)(1); proposed 12 U.S.C. 3414(a)(3)(A); proposed 12U.S.C. 3414(a)(5)(D)(i); proposed 50 U.S.C. 436(b)(1).21 Proposed 50 U.S.C. 1861(d)(2)(C); proposed 18 U.S.C. 2709(c)(4); proposed 15 U.S.C.1681u(d)(4); proposed 15 U.S.C. 1681v(c)(4); proposed 12 U.S.C. 3414(a)(3)(D); proposed 12U.S.C. 3414(a)(5)(D)(iv); proposed 50 U.S.C. 436(b)(4).22 152 CONG. REC. S1326 (daily ed. Feb. 15, 2006) (statement of Sen. Sununu) (“[W]e feel theprovision in the conference report that required the recipient of a national security letter todisclose the name of their attorney to the FBI was punitive and might have the result ofdiscouraging an individual from seeking legal advice.”).Removal of Requirement To Disclose Identity of Attorney SoughtTo Obtain Legal Advice Regarding a Section 215 Order or anNSLThe conference bill expressly clarifies that a recipient of a Section 215 order or anNSL19 may disclose its existence to an attorney to obtain legal advice, as well as to otherpersons approved by the FBI.20  The recipient is not required to inform the FBI or theauthorized government agency of the intent to consult with an attorney to obtain legalassistance; however, upon the request of the FBI Director (or his designee), or upon therequest of the government agency authorized to issue the NSL, the recipient must discloseto the FBI or the government agency the identity of the person to whom the disclosurewill be or was made.21According to one of the sponsors of S. 2271, this provision of the conference billmight have an unintended “chilling effect” on the individual’s right to seek legal counselregarding the Section 215 order or the NSL.22  Section 4 of S. 2271 amends FISA and thefive statutes providing NSL authority to federal intelligence investigators to exemptexplicitly from the identification disclosure requirement the name of the attorney soughtto obtain legal advice with respect to the Section 215 production order or NSL.  S. 2271achieves this exemption by omission (in the case of a Section 215 order) and by explicitlanguage (in the NSL statutes), as described below:Under the conference bill’s proposed 50 U.S.C. 1861(d)(1), the recipient of a Section215 order is prohibited from disclosing to any other person that the FBI has sought thetangible things described in the order, except to the following individuals:(A) those persons necessary for compliance with the order, (B) an attorney to obtain legal advice with respect to the order, or(B) other persons as permitted by the FBI Director or his designee.S. 2271 amends the conference bill’s proposed 50 U.S.C. 1861(d)(2)(C) to provide thatthe FBI Director or his designee may require any person to disclose the identity of personsCRS-523 Proposed 18 U.S.C. 2709(c)(4).  The language used to describe this exception in proposed 18U.S.C. 2709(c)(4) is substantially similar to that used in the proposed amendments to the otherNSL statutes. 24 However, a library could still be subject to a Section 215 order under FISA for the productionof tangible items such as loan records.  S. 2271 does not carve out any exception for librariesunder Section 215.  For more information on this issue, see CRS Report RS21441, Libraries andthe USA PATRIOT Act, by Charles Doyle and Brian T. Yeh.25 Proposed 18 U.S.C. 2709(f) [emphasis added].26 152 CONG. REC. S1326 (daily ed. Feb. 15, 2006) (statement of Sen. Sununu).falling within categories A and C above; notably, it omits B, which effectively removesfrom the identity disclosure requirement attorneys sought for legal assistance.Section 4 of S. 2271 also amends the five NSL statutes by adding language expresslyexempting the identity of attorneys from the disclosure requirement established by theconference bill:At the request of the Director of the Federal Bureau of Investigation or the designeeof the Director, any person making or intending to make a disclosure under thissection shall identify to the Director or such designee the person to whom suchdisclosure will be made or to whom such disclosure was made prior to the request,except that nothing in this section shall require a person to inform the Director orsuch designee of the identity of an attorney to whom disclosure was made or will bemade to obtain legal advice or legal assistance with respect to the request undersubsection (a).23NSLs Not Applicable to LibrariesSection 5 of S. 2271, entitled “Privacy Protections for Library Patrons,” addressesthe concern that a library could potentially be subject to an NSL issued under 18 U.S.C.2709 to obtain certain transactional and subscriber records pertaining to its patrons.24  18U.S.C. 2709 provides NSL authority to the Department of Justice to obtain certaintransaction records from electronic communication service providers forcounterintelligence purposes.  Because libraries often offer patrons the ability to accessthe Internet, current law is unclear as to whether libraries might be considered “electroniccommunication service providers” for purposes of 18 U.S.C. 2709.  S. 2271 amends 18U.S.C. 2709 by adding the following section:“A library ..., the services of which include access to the Internet ... is not a wire orelectronic communication service provider for purposes of this section, unless thelibrary is providing the services defined in section 2510(15) of this title...”25According to one of the sponsors of the bill, this “provision ... makes very clear thatlibraries operating in their traditional role, including the lending of books, includingmaking books available in digital form, including providing basic Internet access, are notsubject to National Security Letters.”26However, if the library “provides” the services described in 18 U.S.C. 2510(15),which are “electronic communication services,” then such library would still be subjectCRS-627 17 U.S.C. 512 (k)(1).28 A large library affiliated with a university, for example, may function in a capacity similar toan ISP, and thus could be considered a communications provider subject to NSL authority.  Theselibraries may offer their students the ability to post materials on website servers operated by thelibrary.29 See 152 CONG. REC. S1390 (daily ed. Feb. 16, 2006) (statement of Sen. Sununu) (“Some havenoted or may note that basic Internet access gives library patrons the ability to send and receivee-mail by, for example, accessing an Internet-based e-mail service.  But in that case, it is the Website operator who is providing the communication service — the Internet communication serviceprovider itself — and not the library, which is simply making available a computer with accessto the Internet.”).30 See 152 CONG. REC. S1390 (daily ed. Feb. 16, 2006) (statement of Sen. Durbin) (“By way ofcomparison, a gas station that has a pay phone isn’t a telephone company.  So a library that hasInternet access, where a person can find an Internet e-mail service, is not a communicationsservice provider; therefore, it would not fall under the purview of the NSL provision in 18 U.S.C.2709.  It is a critically important distinction.”).to NSLs.  18 U.S.C. 2510(15) defines “electronic communication service” to mean anyservice that provides to users the ability to send or receive wire or electroniccommunications.  Yet, this definition potentially could include libraries that offerelectronic mail access to their patrons, depending on the meaning of the words italicizedabove.  There are few instances in federal law that explicitly provide a definition of“service provider.”  For possible insight into the intent of the language used in 18 U.S.C.2510(15), it may be useful to consult the Digital Millennium Copyright Act, whichdefines “service provider” as follows:27(A) [T]he term “service provider” means an entity offering the transmission, routing,or providing of connections for digital online communications, between or amongpoints specified by a user, of material of the user’s choosing, without modification tothe content of the material as sent or received.(B) [T]he term “service provider” means a provider of online services or networkaccess, or the operator of facilities therefor, and includes an entity described insubparagraph (A).Although the second of these two definitions is broadly worded and arguably couldbe used to encompass a library that offers Internet access to patrons, another reasonableinterpretation of the foregoing suggests that to be considered an electronic communicationservice provider under 18 U.S.C. 2510(15), a library must independently operate themeans by which transmission, routing, and connection of digital communication occurs.28In contrast, a local county library likely has a service contract with an Internet ServiceProvider (ISP) to furnish the library with the electronic communication service, as manybusinesses and individuals do; the fact that the library has set up a computer with Internetaccess for the use of its patrons probably does not, by itself, turn the library into acommunications service “provider.”  Under this characterization, the actual “provider”of Internet access is the ISP, not the library.29  Therefore, a public library offering “basic”Internet access would likely not be considered an electronic communication serviceprovider, at least for purposes of being an entity subject to the NSL provisions in 18U.S.C. 2709.30

USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006 (S. 2271)

1  This report examines the provisions of S. 2271 as introduced.2  Section 2 of S. 2271 indicates that the bill amends the specified sections of FISA and the NSLstatutes after they are to be amended by H.R. 3199. Congressional Research Service ˜ The Library of CongressCRS Report for CongressReceived through the CRS WebOrder Code RS22384February 17, 2006USA PATRIOT Act Additional Reauthorizing  Amendments Act of 2006 (S. 2271)Brian T. YehLegislative AttorneyAmerican Law DivisionSummaryThe USA PATRIOT Improvement and Reauthorization Act of 2005, H.R. 3199,as reported by the conference committee, H.Rept. 109-333 (2005), and agreed to by theHouse on December 14, 2005, raises the concern of several members of the Senateregarding its protection of civil liberties.  To provide the Senate with additional time toconsider the conference bill, the 109th Congress enacted legislation delaying the sunseton certain provisions of the USA PATRIOT Act from December 31, 2005, to February3, 2006 (P.L. 109-160), and then approved another extension of the sunset to March 10,2006 (P.L. 109-170).On February 10, 2006, the USA PATRIOT Act Additional ReauthorizingAmendments Act of 2006, S. 2271, was introduced in the Senate.  S. 22711 amends theForeign Intelligence Surveillance Act (FISA) and the five federal statutes providingnational security letter (NSL) authority to federal intelligence investigators2 in thefollowing manner: (1) it grants recipients of a Section 215 order the express right topetition a FISA judge to modify or quash the nondisclosure requirement thataccompanies such an order; (2) it removes the requirement that recipients of Section 215orders or recipients of NSLs must provide the FBI or the authorized governmentauthority with the name of the attorney they consulted to obtain legal advice concerningthe production order or the NSL; and (3) it clarifies that libraries, the services of whichinclude offering patrons access to the Internet, are not subject to NSLs, unless they arefunctioning as electronic communication service providers.Portions of this report are drawn from CRS Report RL33239, USA PATRIOTImprovement and Reauthorization Act of 2005 (H.R. 3199): A Legal Analysis of theConference Bill, and CRS Report RS22348, USA PATRIOT Improvement andReauthorization Act of 2005 (H.R. 3199): A Brief Look.CRS-23 P.L. 107-56.4 50 U.S.C. 1861(a)(1).5 50 U.S.C. 1861(d).  However, the conference bill clarifies that a recipient of a Section 215 ordermay disclose its existence to an attorney to obtain legal advice, as well as to other personsapproved by the FBI, proposed 50 U.S.C. 1861(d)(1)(B), (C).6 Section 106(f) of the conference bill, adding proposed 50 U.S.C. 1861(f)(1), proposed 50 U.S.C.1803(e)(1) and proposed 50 U.S.C. 1803(e)(2).7 152 CONG. REC. S1326 (daily ed. Feb. 15, 2006) (statement of Sen. Sununu) (“I think it isimportant that we stand for the principle that a restriction on free speech such as a gag order canbe objected to in a court of law before a judge.  You can at least have your case heard.  That doesnot mean you will win, necessarily, but you can at least have your case heard.”). 8 Proposed 18 U.S.C. 3511(b)(2)-(3).9 By contrast, the conference bill does not impose a one-year moratorium on challenging thenondisclosure order accompanying a NSL, proposed 18 U.S.C. 3511(b)(1).Judicial Review of the Section 215 Nondisclosure RequirementSection 215 of the USA PATRIOT Act3 amended the business record sections ofFISA to authorize the Director of the Federal Bureau of Investigation (FBI), or a designeeof the Director, to apply to the FISA court to issue orders granting the government accessto any tangible item (including books, records, papers, and other documents), no matterwho holds it, in foreign intelligence, international terrorism, and clandestine intelligencecases.4  A Section 215 order is accompanied by a nondisclosure requirement that prohibitsthe recipient from disclosing to any other person that the FBI has sought the tangiblethings described in the order, except to those persons necessary for compliance.5  Undercurrent law, the recipient of a Section 215 production order lacks an explicit statutoryright to petition the FISA court to modify or set aside either the production order or thenondisclosure requirement.The conference bill accompanying the USA PATRIOT Improvement andReauthorization Act of 2005, H.R. 3199 [hereinafter “conference bill”], provides ajudicial review process for recipients of Section 215 orders to challenge their legality witha specified pool of FISA court judges.6  However, the conference bill does not expresslygrant to recipients of such orders the right to petition the FISA court to modify or quashthe nondisclosure requirement imposed in connection with the production order.  Theconference bill has been criticized for its lack of an express right to challenge thenondisclosure order.7Section 3 of S. 2271 addresses this omission by establishing a judicial reviewprocedure for Section 215 nondisclosure orders that largely resembles the procedure setforth in the conference bill for challenging the nondisclosure order accompanying anNSL:8! For one year after the date of the issuance of a Section 215 productionorder, the nondisclosure requirement remains in full effect and may notbe challenged.9CRS-310 Proposed 50 U.S.C. 1861(f)(2)(A)(i).11 Proposed 50 U.S.C. 1861(f)(2)(A)(ii).12 Proposed 50 U.S.C. 1861(f)(2)(A)(ii), proposed 50 U.S.C. 1803(e)(2).13 Proposed 50 U.S.C. 1861(f)(2)(C)(i). 14 Proposed 50 U.S.C. 1861(f)(2)(C)(ii).15 Proposed 50 U.S.C. 1861(f)(2)(A)(iii).16 Proposed 50 U.S.C. 1861(f)(2)(C)(iii).17 Proposed 50 U.S.C. 1861(f)(3).18 Id.! After this one-year period has expired, the recipient of the productionorder may petition the FISA court to modify or set aside thenondisclosure requirement.10! Within 72 hours, if the judge assigned to consider the petition determinesafter an initial review that the petition is frivolous, the judge shallimmediately deny the petition and affirm the nondisclosure order.11! If, after the initial review, the judge determines that the petition is notfrivolous, the judge shall promptly consider the petition under proceduralmeasures that the FISA court has established to protect national security,including conducting the review in camera.12! The judge has discretion to modify or set aside a nondisclosure orderupon a finding that there is no reason to believe that disclosure mayendanger the national security of the United States; interfere with acriminal, counterterrorism, or counterintelligence investigation; interferewith diplomatic relations; or endanger the life or physical safety of anyperson.13! If, at the time the individual files the petition for judicial review of anondisclosure order, the Attorney General, Deputy Attorney General, anAssistant Attorney General, or the Director of the FBI certifies thatdisclosure may endanger the national security of the United States orinterfere with diplomatic relations, then the FISA judge must treat suchgovernment certification as conclusive unless the judge finds that thecertification was made in bad faith.14! If the judge grants a petition to quash the nondisclosure requirement,upon the request of the government, such order is stayed pending reviewof the decision to the FISA Court of Review.15! If the judge denies the petition to modify or set aside the nondisclosurerequirement, the recipient of the Section 215 order is precluded fromfiling another such petition for one year.16! The FISA Court of Review has jurisdiction to consider a petition by thegovernment or by the recipient of a Section 215 order and to review aFISA judge’s decision to affirm, modify, or set aside such productionorder or the nondisclosure order imposed in connection with it.17  TheU.S. Supreme Court has jurisdiction to review a decision of the FISACourt of Review concerning this matter.18CRS-419 Five federal statutes, in roughly the same terms, authorize federal intelligence investigators(generally the FBI) to request that communications providers, financial institutions, and creditbureaus provide certain customer information relating to a national security investigation.  Thesestatutes are 12 U.S.C. 3414; 15 U.S.C.1681u; 15 U.S.C. 1681v; 18 U.S.C. 2709; 50 U.S.C. 436.20 Proposed 50 U.S.C. 1861(d)(1)(B), (C); proposed 18 U.S.C. 2709(c)(1); proposed 15 U.S.C.1681u(d)(1); proposed 15 U.S.C. 1681v(c)(1); proposed 12 U.S.C. 3414(a)(3)(A); proposed 12U.S.C. 3414(a)(5)(D)(i); proposed 50 U.S.C. 436(b)(1).21 Proposed 50 U.S.C. 1861(d)(2)(C); proposed 18 U.S.C. 2709(c)(4); proposed 15 U.S.C.1681u(d)(4); proposed 15 U.S.C. 1681v(c)(4); proposed 12 U.S.C. 3414(a)(3)(D); proposed 12U.S.C. 3414(a)(5)(D)(iv); proposed 50 U.S.C. 436(b)(4).22 152 CONG. REC. S1326 (daily ed. Feb. 15, 2006) (statement of Sen. Sununu) (“[W]e feel theprovision in the conference report that required the recipient of a national security letter todisclose the name of their attorney to the FBI was punitive and might have the result ofdiscouraging an individual from seeking legal advice.”).Removal of Requirement To Disclose Identity of Attorney SoughtTo Obtain Legal Advice Regarding a Section 215 Order or anNSLThe conference bill expressly clarifies that a recipient of a Section 215 order or anNSL19 may disclose its existence to an attorney to obtain legal advice, as well as to otherpersons approved by the FBI.20  The recipient is not required to inform the FBI or theauthorized government agency of the intent to consult with an attorney to obtain legalassistance; however, upon the request of the FBI Director (or his designee), or upon therequest of the government agency authorized to issue the NSL, the recipient must discloseto the FBI or the government agency the identity of the person to whom the disclosurewill be or was made.21According to one of the sponsors of S. 2271, this provision of the conference billmight have an unintended “chilling effect” on the individual’s right to seek legal counselregarding the Section 215 order or the NSL.22  Section 4 of S. 2271 amends FISA and thefive statutes providing NSL authority to federal intelligence investigators to exemptexplicitly from the identification disclosure requirement the name of the attorney soughtto obtain legal advice with respect to the Section 215 production order or NSL.  S. 2271achieves this exemption by omission (in the case of a Section 215 order) and by explicitlanguage (in the NSL statutes), as described below:Under the conference bill’s proposed 50 U.S.C. 1861(d)(1), the recipient of a Section215 order is prohibited from disclosing to any other person that the FBI has sought thetangible things described in the order, except to the following individuals:(A) those persons necessary for compliance with the order, (B) an attorney to obtain legal advice with respect to the order, or(B) other persons as permitted by the FBI Director or his designee.S. 2271 amends the conference bill’s proposed 50 U.S.C. 1861(d)(2)(C) to provide thatthe FBI Director or his designee may require any person to disclose the identity of personsCRS-523 Proposed 18 U.S.C. 2709(c)(4).  The language used to describe this exception in proposed 18U.S.C. 2709(c)(4) is substantially similar to that used in the proposed amendments to the otherNSL statutes. 24 However, a library could still be subject to a Section 215 order under FISA for the productionof tangible items such as loan records.  S. 2271 does not carve out any exception for librariesunder Section 215.  For more information on this issue, see CRS Report RS21441, Libraries andthe USA PATRIOT Act, by Charles Doyle and Brian T. Yeh.25 Proposed 18 U.S.C. 2709(f) [emphasis added].26 152 CONG. REC. S1326 (daily ed. Feb. 15, 2006) (statement of Sen. Sununu).falling within categories A and C above; notably, it omits B, which effectively removesfrom the identity disclosure requirement attorneys sought for legal assistance.Section 4 of S. 2271 also amends the five NSL statutes by adding language expresslyexempting the identity of attorneys from the disclosure requirement established by theconference bill:At the request of the Director of the Federal Bureau of Investigation or the designeeof the Director, any person making or intending to make a disclosure under thissection shall identify to the Director or such designee the person to whom suchdisclosure will be made or to whom such disclosure was made prior to the request,except that nothing in this section shall require a person to inform the Director orsuch designee of the identity of an attorney to whom disclosure was made or will bemade to obtain legal advice or legal assistance with respect to the request undersubsection (a).23NSLs Not Applicable to LibrariesSection 5 of S. 2271, entitled “Privacy Protections for Library Patrons,” addressesthe concern that a library could potentially be subject to an NSL issued under 18 U.S.C.2709 to obtain certain transactional and subscriber records pertaining to its patrons.24  18U.S.C. 2709 provides NSL authority to the Department of Justice to obtain certaintransaction records from electronic communication service providers forcounterintelligence purposes.  Because libraries often offer patrons the ability to accessthe Internet, current law is unclear as to whether libraries might be considered “electroniccommunication service providers” for purposes of 18 U.S.C. 2709.  S. 2271 amends 18U.S.C. 2709 by adding the following section:“A library ..., the services of which include access to the Internet ... is not a wire orelectronic communication service provider for purposes of this section, unless thelibrary is providing the services defined in section 2510(15) of this title...”25According to one of the sponsors of the bill, this “provision ... makes very clear thatlibraries operating in their traditional role, including the lending of books, includingmaking books available in digital form, including providing basic Internet access, are notsubject to National Security Letters.”26However, if the library “provides” the services described in 18 U.S.C. 2510(15),which are “electronic communication services,” then such library would still be subjectCRS-627 17 U.S.C. 512 (k)(1).28 A large library affiliated with a university, for example, may function in a capacity similar toan ISP, and thus could be considered a communications provider subject to NSL authority.  Theselibraries may offer their students the ability to post materials on website servers operated by thelibrary.29 This ambiguity, however, has raised the concern of the American Library Association (ALA).See ALA Criticizes Patriot Act Compromise, Feb. 13, 2006, available at[http://www.libraryjournal.com/article/CA6306777.html] (expressing disappointment thatlibraries that function as ISPs would still remain subject to NSLs).to NSLs.  18 U.S.C. 2510(15) defines “electronic communication service” to mean anyservice that provides to users the ability to send or receive wire or electroniccommunications.  Yet, this definition potentially could include libraries that offerelectronic e-mail access to their patrons, depending on the meaning of the words italicizedabove.  There are few instances in federal law that explicitly provide a definition of“service provider.”  For possible insight into the intent of the language used in 18 U.S.C.2510(15), it may be useful to consult the Digital Millennium Copyright Act, whichdefines “service provider” as follows:27(A) [T]he term “service provider” means an entity offering the transmission, routing,or providing of connections for digital online communications, between or amongpoints specified by a user, of material of the user’s choosing, without modification tothe content of the material as sent or received.(B) [T]he term “service provider” means a provider of online services or networkaccess, or the operator of facilities therefor, and includes an entity described insubparagraph (A).Although the second of these two definitions is broadly worded and arguably couldbe used to encompass a library that offers Internet access to patrons, another reasonableinterpretation of the foregoing suggests that to be considered an electronic communicationservice provider under 18 U.S.C. 2510(15), a library must independently operate themeans by which transmission, routing, and connection of digital communication occurs.28In contrast, a local county library likely has a service contract with an Internet ServiceProvider (ISP) to furnish the library with the electronic communication service, as manybusinesses and individuals do; the fact that the library has set up a computer with Internetaccess for the use of its patrons probably does not, by itself, turn the library into acommunications service “provider.”  Under this characterization, the actual “provider”of Internet access is the ISP, not the library. Therefore, a public library offering “basic”Internet access would likely not be considered an electronic communication serviceprovider, at least for purposes of being an entity subject to the NSL provisions in 18U.S.C. 2709.29

https://digital.library.unt.edu/ark:/67531/metacrs8489/m1/1/high_res_d/RS22384_2006Feb17.pdf

USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006 (S. 2271)

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