Mr. NADLER. Mr. Chairman, I offer an amendment.

The CHAIRMAN. The Clerk will designate the amendment.

The text of the amendment is as follows:

 

Amendment offered by Mr. Nadler:

At the end of the bill, before the short title, insert the following:

TITLE VIII--ADDITIONAL GENERAL PROVISIONS

SEC. 801. None of the funds made available in this Act may be used to issue a national security letter to a health insurance company under any of the provisions of law amended by section 505 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001.

 

The CHAIRMAN. Pursuant to the order of the House of Tuesday, June 27, 2006, the gentleman from New York (Mr. Nadler) and a Member opposed each will control 5 minutes.

The Chair recognizes the gentleman from New York.

Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, this amendment prohibits any funds from being used to issue National Security Letters to health insurance companies to obtain people's private and personal medical records.

Currently, under section 505, any FBI field office director can demand your personal medical records without a warrant or any judicial approval and the insurance company is legally required to give it to them and is legally prohibited or gagged from telling you or anyone else about the order.

Last year, almost 10,000 unreviewed National Security Letters were issued by the FBI without showing any connection between the records sought and any suspected foreign terrorist. Post PATRIOT Act reauthorization, I remain very concerned, because National Security Letters are still issued without court approval simply on the letter's assertion that the request is relevant to a national security investigation, without any showing of a connection to a suspected terrorist.

The right to challenge the gag order is not real, since the government's mere assertion that lifting the gag order would pose a threat to national security must be treated by the court as conclusive, with no evidence necessary as to the truth of that assertion.

Government officials already have access to so much of our personal information, such as credit reports, library user, and telephone communications. Do we want the government to have such unchecked access to personal and private information as revealed by our medical history: psychiatric profiles, lab studies, and diagnostic tests like CAT scans and MRIs?

If somehow your medical records are necessary in fact to a terrorist investigation, the government should be required to explain to a judge why they are needed, as is provided in section 215 of the PATRIOT Act, rather than simply allowing an FBI field agent to demand those records in secret.

The FBI already has far-reaching compulsory powers to obtain documents when it is investigating terrorism under both its criminal and intelligence authority. The FBI can obtain a search warrant if there is judicial finding of probable cause that a crime has or will be committed. The FBI can use Grand Jury subpoenas; and, in terrorism cases, the FBI has sweeping authority to obtain all the records, including medical records, under section 215 of the PATRIOT Act. But it has to go to a judge.

Given these existing search powers, there is no reason to authorize the FBI to issue unchecked National Security Letters demanding medical records without any showing of anything to a judge.

Mr. Chairman, if you have visited a doctor's office or a hospital in the last few months, you may have seen a notice telling you that your medical records may be turned over to the government for law enforcement or intelligence purposes. We can all agree that giving the FBI access to our most intimate private information is too great an intrusion on our privacy to leave unlimited and unsupervised.

There may very well be reasonable legitimate reasons for the FBI to need this information in terrorist investigations. Section 215 of the PATRIOT Act provides for them to get that information if they simply go to a judge and tell them why they need it. The NSLs, which this amendment would stop, or would say you can't spend money on, skips the necessity of even going to a judge in private, in secret, and saying why they need that.

Let them use section 215. We had almost a majority on this floor to eliminate section 215, but at least that requires a showing to a judge. The National Security Letters allows any FBI field office director to get these most private records without any showing to a judge. That is wrong, and I urge my colleagues to vote for this amendment.

Mr. Chairman, I reserve the balance of my time.

Mr. WOLF. Mr. Chairman, I rise in strong opposition to the amendment.

The CHAIRMAN. The gentleman is recognized for 5 minutes.

Mr. WOLF. Mr. Chairman, I yield myself 2 minutes.

We are talking about terrorism. Every time the gentleman gets up, he paints something that really is inaccurate; and I think the gentleman from California will explain what you said. There have been changes in the PATRIOT Act.

The threat of terrorism and espionage is real. Thirty people from my district died in the attack on the World Trade Center. Two of my children live up in your congressional district. And if you read the article the other day about gas in the subways, you sort of make these statements, and you act like the Justice Department and the FBI is going to go after somebody's medical records. They are trying to stop terrorism. They are trying to stop what took place on 9/11 from taking place again.

We have a letter from the Justice Department. ``National Security Letters are extremely valuable to investigations of international terrorism.'' Not your MRIs, but international terrorism and espionage, al Qaeda.

This Congress stood by and did nothing while Osama bin Laden lived in Sudan from 1991 to 1996. I was the author of the National Commission on Terrorism, which came out in the year 2000. In 2000, Nancy Pelosi supported me in the committee when we got the funding for it. On the cover of the Bremer Commission report that came out in the year 2000, there is a picture of the World Trade Center on fire, and this body did nothing. It stood by and it watched, and the previous administration did nothing. And now there are people that have died because they have done nothing.

This is a bad amendment. The PATRIOT Act has been authorized by the Judiciary Committee. Mr. Lungren will tell you the changes that have been made. There have been protections put in it.

My goodness, do we want to tie the FBI's hands when they are trying to catch bin Laden and people like that? This is a bad amendment. We went through it on the authorizing act.

I reserve the balance of my time.

Mr. NADLER. Mr. Chairman, I would like to hear what Mr. Lungren has to say before I use the balance of my time.

The CHAIRMAN. The gentleman from New York reserves his time.

Mr. WOLF. Mr. Chairman, do I have the right to close?

The CHAIRMAN. The gentleman from Virginia has the right to close.

Mr. WOLF. How much time do I have?

The CHAIRMAN. The gentleman has 3 minutes remaining.

Mr. WOLF. Mr. Chairman, I yield 2 1/2 minutes to the gentleman from California (Mr. Daniel E. Lungren).

Mr. DANIEL E. LUNGREN of California. I thank the gentleman for yielding.

Let us be clear what this would do. The Nadler amendment would prohibit the FBI from using these NSLs to obtain any financial records or health records from health insurance companies even if those records are indisputably relevant to an international terrorism or espionage investigation.

Indeed, the FBI would be prohibited from using the NSL to obtain financial records of a known terrorist from a health insurance company, no matter how much evidence the FBI possessed of the target's involvement with terrorism. It would not just prevent the FBI from obtaining medical records.

Currently, the FBI can obtain health insurance records through the use of administrative subpoenas without the approval of a judge to investigate not terrorism but health care fraud offenses. So if the FBI is allowed to use administrative subpoenas to obtain these records to investigate health care fraud by dirty doctors, then it should be allowed to use these NSLs, which are similar to administrative subpoenas, to obtain these same records in international terrorism investigations which may involve dirty bombs.

This is basically the same amendment Mr. Nadler offered to last year's appropriation bill that was defeated on this floor. The only thing that has changed since that time is not the language of his amendment but in fact the enactment of the reauthorization of the USA PATRIOT Act which contains several new protections to prevent abuse of this authority.

However, even without the new protections, there is no evidence of the abuse of these letters. Nonetheless, in March of this year, the President signed the bill; and it adds these protections which were not present last year when we debated this same amendment:

Clarification that recipients may disclose that they have received an NSL to an attorney or others necessary to comply with the NSL.

Secondly, explicit language that a recipient may challenge an NSL in court.

Third, explicit language that a recipient of an NSL may challenge the prohibition on publicly disclosing that he or she has received an NSL.

Next, for the first time, language requiring public reporting on the use of NSL authorities.

Next, requirement for additional classified reporting to Congress on the use of NSL authorities so we can exercise oversight in a more effective way.

And, finally, requirement that the Inspector General conduct two audits of the Justice Department's use of NSLs.

Last year, we debated this same amendment, same issue, similar appropriation bill. The only difference is we have added protections since that time by the reenactment of the PATRIOT Act and the signature of the President.

So if you voted against it last year, if you thought we should defeat it last year, you have more than sufficient reason to defeat it this year.

Mr. NADLER. Mr. Chairman, how much time do I have left?

The CHAIRMAN. The gentleman has 1 1/2 minutes remaining.

Mr. NADLER. I yield 30 seconds to the gentleman from Rhode Island (Mr. Kennedy).

Mr. KENNEDY of Rhode Island. I thank the gentleman.

Right now, everybody has access to your medical records. Obviously, I would like to support more privacy. But, frankly, your insurance company has a right to your medical records, all the data processing companies have a right to your medical records, and all the financial institutions that are collocated with the insurance companies have your financial records.

The Health Care Information and Privacy Act in this country has no teeth. Some nurse or doctor can sell your medical records and not be liable civilly or criminally. Someone can sell your records to a tabloid, and you have no right to sue the tabloid. They can obtain it under illegal and false pretenses. No recourse whatsoever.

This notion of privacy is really bunk. We have no privacy in terms of medical records. And I would ask the American people, please call your representative and demand medical privacy from our HIPAA laws.

ANNOUNCEMENT BY THE CHAIRMAN

The CHAIRMAN. The Chair would remind Members to address their remarks to the Chair and not to a viewing audience.

Mr. NADLER. Mr. Chairman, I yield myself the balance of my time.

Mr. Chairman, I respect everything that the gentleman from Virginia said. 9/11 happened in my district. Terrorism is terrible. We are waging a war against it, and we have to wage that war against it, and we have to protect ourselves. The question is intelligent protection.

The FBI should not have the right to get our medical records without going to a court. That is what this question is about. Should they have the right to get these records simply on an assertion or a letter that nobody even has to look at, that it is simply relevant to an investigation, without going to court?

Yes, certain protections were put into the bill. Those protections are insubstantial. For example, you can challenge the gag order. Yeah, but if the government says that lifting the gag order would harm national security, that assertion must be taken as dispositive. The court can't say, really? The court can't say, what evidence?

    
For all practical purposes, they have an absolute right to these records without showing them to a court. I am not saying they should not get the records. My amendment doesn't say they shouldn't get the records. What it says is a general principle, one that we should always adhere to, if they think they need the records for a terrorist investigation, go to a court, go to a FISA court, go to a secret court. Use section 215 of the PATRIOT Act.

But we shouldn't allow the FBI to have access to private records without some showing in court of necessity of probable cause or something. That is why this amendment should pass.

Mr. MOLLOHAN. Mr. Chairman, I move to strike the last word, and I yield to the gentleman from Rhode Island.

Mr. KENNEDY of Rhode Island. Mr. Chairman, just one last point. We have no medical privacy in this country now. The health care and privacy act is nonexistent. It has no teeth in it. Your medical records can be found out from anybody anywhere.

They pass through a million different institutions as they get processed through transaction companies, insurance companies, financial companies. It is absolutely bogus.

We haven't even passed the genetic nondiscrimination act here in this place, which means, if you have genetic disposition to a particular illness, you are not protected. There is no privacy in our medical records. Let us just understand that from the get-go.

The American people are outraged by not having privacy, they have to get to their Members of Congress and request that we do more to strengthen the HIPAA law, the healthcare information and privacy act.

Mr. WOLF. Mr. Chairman, I move to strike the requisite number of words.

I agree with the gentleman from Rhode Island on the medical records' safety and privacy. I think the gentleman makes a valid point, but that is really not what we are talking about tonight. We are dealing with the FBI dealing with terrorism.

As I mentioned, a newly released book by a Pulitzer Prize winning author states that al Qaeda came within 45 days of attacking the New York subway system with lethal gas. We never completely know why they didn't move ahead, but within 45 days. If a National Security Letter would stop something like this, and they are still out there. Al Qaeda is still out there. They are still committed.

There is a book by Mary Habeck, Knowing the Enemy. They are still out there and committed to coming. So if a National Security Letter could stop what took place on 9/11 at the World Trade Center or at the Pentagon over in that area or in the bombing of the Khobar Towers, the USS Cole or the Marine barracks or places like that, we certainly would want to stop that.

Mr. Chairman, I yield the balance of my time to the gentleman from California (Mr. Daniel E. Lungren).

Mr. DANIEL E. LUNGREN of California. I thank the gentleman for yielding. Let us be clear what we are talking about here. We are not talking about, generally speaking, about the question of the privacy of medical records. We are asking whether NSLs are an appropriate means with which to obtain information from health insurance companies as they are utilized or a similar process, that is administrative subpoenas that are not obtained by a court, are utilized to look at health care fraud.

One of the things that we got out of the 9/11 Commission was the fact that we had failed to not only connect dots but failed to adapt our criminal justice investigative procedures in the face of this new threat, which is terrorism. Some people would say, well, why would health records be relevant to such a case?

Well, in the instance of anthrax, for instance, it would be relevant if someone had sought medical attention that would, in fact, basically inoculate them if they came into contact with anthrax. It would be of some assistance if a group of people involved, that we had suspicion were involved with a terrorist group, were inoculated for smallpox. I mean, these are those sorts of things that help us connect the dots.

Mr. WOLF. If the gentleman would yield.

Mr. DANIEL E. LUNGREN of California. Yes.

Mr. WOLF. I appreciate what the gentleman said. Members should know in our bill our committee established in the Justice Department an Office of Privacy and Civil Liberty for the very reason that Mr. Serrano used to raise, and rightly, to protect to make sure something did not happen.

Mr. DANIEL E. LUNGREN of California. If the gentleman will recall, the Judiciary Committee has been very aggressive in oversight of Justice Department actions with respect to the PATRIOT Act. Several of the changes made in the law that I referred to before give us a greater handle on that because it requires more reporting to the Congress on what has been done with respect to NSLs in this regard.

So as I said, the biggest difference between our consideration of the gentleman's amendment last year and this year is there are more protections built in to the use of NSLs by the Justice Department than there were before. I thank the gentleman for yielding.

Mr. WOLF. Mr. Chairman, I submit the letter that I referenced earlier.

 

U.S. DEPARTMENT OF JUSTICE,

OFFICE OF LEGISLATIVE AFFAIRS,

Washington, DC, June 28, 2006.

Hon. FRANK R. WOLF,
Chairman, Subcommittee on Science, the Departments of State, Justice, and Commerce and Related Agencies, House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: We have been advised that Congressman Nadler may offer an amendment to the pending Justice Appropriations bill that would restrict the use of National Security Letters (``NSLs'') relating to medical records. Congressman Nadler offered a very similar amendment last year. That amendment was defeated. We remain opposed to any such amendment.

NSLs are similar to subpoenas and may be used by the Federal Bureau of Investigation (FBI) to obtain from specified companies information relevant to authorized investigations of international terrorism and espionage. It is unwise to create carveouts from the scope of these important investigative tools, particularly since there has been no allegation of abuse regarding medical information, the subject of the proposed carveout. NSLs are generally used to obtain: (1) billing and transactional records maintained by telephone companies and Internet service providers; (2) credit reports and other consumer information maintained by consumer reporting agencies; and (3) financial information maintained by financial institutions. It would be an exceedingly rare circumstance in which an NSL issued to one of these institutions would capture medical records.

Moreover, the Congress addressed in a full and considered manner the concerns of critics of the use of NSLs when it passed the USA PATRIOT Improvement and Reauthorization Act earlier this year. That bill included numerous changes to all the NSL statutes to clarify and improve the laws' privacy protections. Congress also mandated a comprehensive audit by the Department's Inspector General on the use and effectiveness of NSLs. The findings of that review are expected to be available early next year.

It is also interesting to note that Congress has already provided the FBI the authority to obtain health insurance records through the use of administrative subpoenas (without the approval of a judge) when investigating criminal health care fraud. NSLs and administrative subpoenas are very similar except for some of the additional civil liberty protections added to the NSL statutes during the debate to reauthorize the USA PATRIOT Act. It would be odd if the Congress were to make a different policy determination when, rather than a health care fraud matter, the investigation involved international terrorism.

NSLs are extremely valuable to investigations of international terrorism and espionage. Information obtained through NSLs has significantly advanced numerous sensitive terrorism and espionage investigations and has assisted the FBI in discovering links to previously unknown terrorist operatives. We see no justification for artificially restricting the reach of those investigative tools.

Thank you for this opportunity to express our concerns. The Office of Management and Budget has advised us that from the perspective of the Administration's program, there is no objection to this letter.

Sincerely,

William E. Moschella,
Assistant Attorney General.

 

The CHAIRMAN. The question is on the amendment offered by the gentleman from New York (Mr. Nadler).

The question was taken; and the Chairman announced that the noes appeared to have it.

Mr. NADLER. Mr. Chairman, I demand a recorded vote.

The CHAIRMAN. Pursuant to clause 6 of rule XVIII, further proceedings on the amendment offered by the gentleman from New York will be postponed.