Mr. EDWARDS of California. Mr. Speaker, I ask unanimous consent that the Committee on the Judiciary be discharged from further consideration of the Senate bill (S. 3316) to amend title 18, United States Code, to authorize the Federal Bureau of Investigation to obtain certain telephone subscriber information, and ask for its immediate consideration in the House.
The Clerk read the title of the Senate bill.
The SPEAKER pro tempore. Is there objection to the request of the gentleman from California?
Mr. FISH. Mr. Speaker, reserving the right to object, I do so for the purpose of asking the distinguished gentleman from California [Mr. Edwards] if he would explain the measure to the body.
I yield to the gentleman from California [Mr. Edwards].
(Mr. EDWARDS of California asked and was given permission to revise and extend his remarks.)
Mr. EDWARDS of California. Mr. Speaker, This bill concerns the authority of the FBI to obtain information identifying certain telephone subscribers for use in foreign counterintelligence and international terrorism investigations.
The language in this bill was carefully negotiated with the FBI, to ensure that the needs of the FBI were met while at the same time protecting the privacy of telephone records.
The bill amends section 2709 of the Electronic Communications Privacy Act [ECPA], 18 U.S.C., 2709, to require that a wire or electronic communication service provider give the FBI access, without a court order or subpoena, to information identifying certain telephone subscribers.
The adopting ECPA in 1986, Congress established certain privacy protections for subscriber records and other information held by telephone companies and other electronic communication service providers. Congress provided that the Government could obtain a subscriber's transactional records or other information from a telephone company without the subscriber's permission only pursuant to a subpoena, search warrant or court order where there is reason to believe that the information is relevant to a legitimate law enforcement inquiry. 18 U.S.C. 2703.
Congress created a limited exception to this rule for use in counterintelligence and international terrorism cases. In 18 U.S.C. 2709, Congress gave the FBI authority to compel production of identifying information and toll records with a so-called national security letter, signed by an FBI official without judicial review and without relevance to a criminal investigation, where the subscriber is believed to be a foreign power or agent of a foreign power, as defined in the Foreign Intelligence Surveillance Act. Foreign power includes international terrorist groups.
The FBI has concluded that the authority in section 2709 is, in one specific respect, too narrow. To illustrate the problem, the Bureau
cites the case of a former employee of the U.S. Government who called a foreign embassy and offered to provide sensitive U.S. Government information. The conversation was monitored, but the former employee did not identify himself. The former employee subsequently met with representatives of the foreign nation and compromised highly sensitive information about U.S. intelligence capabilities. The FBI argues that if it had been able to trace the number from which the first call offering information was placed, it might have been able to identify the former employee sooner or prevent the loss of information.
However, under sections 2703 and 2709 as they were adopted in 1986, the FBI could not, without a subpoena or court order, obtain the identity of a subscriber, unless there was a reason to believe that the subscriber was a foreign power or agent of a foreign power. In the case described above, the FBI did not have reason to believe that the caller was a foreign agent. Instead, the caller appeared to be a possible volunteer to be an agent, and therefore did not meet the section 2709 standard.
In response to this limitation, the FBI asked Congress to expand the reach of section 2709, to allow the FBI certification to require phone companies to identify not only suspected agents of foreign powers but also persons who have been in contact with foreign powers or suspected agents of foreign powers. As originally proposed by the FBI, the amendment would have applied to any caller to a foreign diplomatic establishment and any caller to official foreign visitors such as scholars from government universities abroad. This was deemed by the committee to be too broad.
Exempt from the judicial scrutiny normally required for compulsory process, the national security letter is an extraordinary device. New applications are disfavored. However, after careful study, the committee concluded that a narrow change in section 2709 to meet the FBI's focused and demonstrated needs was justified. The provision reported by the committee is a modification of the language originally proposed by the FBI. It allows access where: First, there is a contact with a suspected intelligence officer or a suspected terrorist, or second, the circumstances of the conversation indicate, as they did in the case described above, that it may involve spying or an offer of information.
In addition to covering a future case like the one described above, this new authority would allow the FBI to identify subscribers in the following types of cases, cited by the FBI in justifying its need for this amendment:
First, persons whose phone numbers were listed in an address book seized from a suspected terrorist;
Second, all persons who call an embassy and ask to speak with a suspected intelligence officer; and
Third, all callers to the home of a suspected intelligence officer or the apartment of a suspected terrorist.
Section 2709 as enacted in 1986 used the phrase subscriber information and toll billing records information to describe the information that the FBI could obtain. Instead of subscriber information, the amendment here uses more specific terms: names, address, length of service. As used in this section, toll billing records consist of information maintained by a wire or electronic communication service provider identifying the telephone numbers called from a particular phone or attributable to a particular account for which a communication service provider might charge a service fee. The committee intends, and the FBI agrees, that the authority to obtain subscriber information and toll billing records under section 2709 does not require communications service providers to create records which they do not maintain in the ordinary course of business.
Section 1706(b) strengthens congressional oversight of the exercise of this authority by amending section 2709(e) to add a requirement that the FBI report on its use of the authority to both House and Senate Judiciary Committees as well as both intelligence committees. It is the committee's intent regarding this section that the FBI should, without identifying the subjects of pending investigations, inform the committees, as part of this report, of the facts and circumstances that are the basis for obtaining information concerning any domestic political organization or groups under section 2709.
Under section 2703(e), wire or electronic communication service providers who provide information in response to a court order, warrant, subpoena or certification under this chapter are protected from liability for such disclosure. The certification signed by the Director or the Director's designee under the section 2709(b) is a certification for purposes of section 2703(e).
The bill amends 18 U.S.C. 2709 by striking subsection (b) and inserting in lieu thereof a new subsection containing two paragraphs.
Paragraph one of the new section 2709(b) re-enacts the existing authority for FBI access to the name, address, length of service, and toll billing records of a person or entity when the Director or the Director's designee certifies in writing to the wire or electronic communication service provider to which the request is made that first, the information sought is relevant to an authorized foreign counterintelligence investigation; and second, there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is a foreign power or an agent of a foreign power as defined in the Foreign Intelligence Surveillance Act.
Paragraph two of the new section 2709(b) authorizes the FBI Director or the Director's designee to obtain the name, address, and length of service of a person or entity if the Director or the Director's designee certifies in writing to the wire or electronic communications service provider to which the request is made that first, the information sought is relevant to an authorized foreign counterintelligence investigation; and second, there is reason to believe that communications facilities registered in the name of the person or entity have been used, through the services of such provider, in communication with an individual who is engaging or has engaged in international terrorism or clandestine intelligence activities that involve or may involve a violation of the criminal statutes of the United States, or a foreign power or an agent of a foreign power under circumstances giving reason to believe that the communication concerned international terrorism or clandestine intelligence activities.
The bill also adds the House and Senate Judiciary Committees to the oversight provision in section 2709(e).
Mr. FISH. Mr. Speaker, further reserving the right to object, I thank the gentleman from California very much.
Mr. Speaker, I withdraw my reservation of objection.
The SPEAKER pro tempore. Is there objection to the request of the gentleman from California?
There was no objection.
The Clerk read the Senate bill.
(Senate bill not available.)
The Senate bill was ordered to be read a third time, was read the third time, and passed, and a motion to reconsider was laid on the table.