AMENDMENT NO. 9 OFFERED BY MR. NADLER

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 No. 9 offered by Mr. Nadler:

Page 108, after line 7, insert the following:

TITLE VIII--ADDITIONAL GENERAL PROVISIONS

SECTION 801. None of the funds made available in this Act may be used to issue a national security letter, for health insurance records, 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 June 14, 2005, the gentleman from New York (Mr. Nadler) and a Member opposed each will control 7 1/2 minutes.

The Chair recognizes the gentleman from New York (Mr. Nadler).

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

Mr. Chairman, my amendment prohibits funds from being used to issue national security letters to health insurance companies under the provisions of section 505 of the PATRIOT Act.

Currently, any FBI field office director is authorized to issue secret national security letters to insurance providers without any judicial approval, not even a FISA court. These NSLs open the door to a secret seizure of highly personal medical information. The FBI, if this amendment passes, will still be able to get all these records because they have so many other tools available to them, which I will describe in a moment.

Almost limitless sensitive private information from health insurance companies, including medical records, can be collected secretly by simply issuing a national security letter under section 505 on an FBI field director's own assertion that the request is merely relevant to a national security investigation. These private health insurance records can be demanded without any court review or approval, not even a FISA court.

Worse yet, the target of the NSL will never know that his health records were inspected by government agents, because health insurance companies are barred by law from telling him or anyone else that the records were demanded.

Government officials already have access to so much of our personal information, such as credit reports, library use, and telephone communications. Do we want the government to keep files detailing our personal lifestyles as revealed by our medical histories, psychiatric profiles, lab studies, and diagnostic tests like CAT scans or MRIs?

Why does the FBI need access to health records? How is this information pertinent to a terrorist investigation? If somehow your medical records are, in fact, relevant to a terrorist investigation, the government should be required to explain to a judge, in a secret FISA court if need be, why that is, instead of simply allowing an FBI field agent to demand those records in secret.

In any criminal investigation the FBI can obtain a search warrant for documents or other tangible things if there is a judicial finding of probable cause that a crime has been or will be committed. The FBI can use grand jury subpoenas issued under the supervision of a judge and the U.S. Attorney. And in international terrorism cases, such as we are talking here, the FBI has sweeping authority to obtain business records, including medical records, under section 215, which we discussed a few moments ago.

Given these existing powers, there is no reason to authorize the FBI to issue unchecked and reviewable national security letters demanding personal medical records.

I am not seeking to repeal the PATRIOT Act. This amendment seeks only to modify the application of one provision that poses a serious potential to abuse. Through this very narrow amendment we can provide checks and balances with regard to our sensitive medical records.

However, since I was greatly restricted by the House rules, this amendment does not fully address all the problems created by section 505 and national security letters. I am hopeful I can work with the Committee on the Judiciary to address these problems more completely. This amendment addresses only the health insurance provider's records; not bank records, not credit company records, not credit bureau records, not car dealerships. But when it comes to health insurance, what terrorist has health insurance? The problem is that most, but not all, innocent Americans do have health insurance, and the FBI should not have easy access to this information, at least not without telling a judge why he needs this.

I have also introduced, along with the gentleman from Arizona (Mr. Flake), a stand-alone bill to address more fully the issues presented by section 505.

In Doe v. Ashcroft, the New York Federal District Court struck down this section on the grounds that it violates free speech rights under the first amendment, as well as the right to be free from unreasonable searches under the fourth amendment.

We can all agree that giving the FBI access to our most intimate private information is too great an intrusion of privacy to leave unlimited and unsupervised. We can be both safe and free. And if the FBI thinks that for a terrorist investigation it needs access to private medical records, let them at least show to a judge, in a secret FISA court, under section 215, which we did not take the power away from them to do, why that is relevant to an ongoing terrorist investigation.

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

Mr. WOLF. Mr. Chairman, I claim the time in opposition to the amendment, and I yield myself 30 seconds.

Mr. Chairman, I rise in opposition. The Committee on the Judiciary has held over 10 hearings on the PATRIOT Act, including a hearing devoted just to national security letters.

We saw this amendment for the first time Monday night. It is unclear to me why health insurance records are different than any other records. We do not know how this amendment would impact a counterterrorism investigation. We just do not know. And here we are with 7 1/2 minutes on each side. What is this? This is no way to protect the country.

I could never support 7 1/2 minutes. And I do not care if it is just the naming of some government building somewhere. So I strongly urge Members to vote ``no'' on this. Seven-and-a-half minutes? We cannot do it. I urge a ``no'' vote.

Mr. Chairman, I yield 2 minutes to the gentleman from Florida (Mr. Feeney).

Mr. FEENEY. Mr. Chairman, again, I appreciate the gentleman from Virginia (Mr. Wolf) yielding me this time, and he is exactly right. The Committee on the Judiciary has had no less than 10 hearings on the PATRIOT Act, including one specifically devoted to national security letters.

This may be an issue as we move forward on the process to find a way to reform or modify, but there have been no abuses. This is a solution in search of a problem. The fact of the matter is these types of subpoenas are already available to investigate insurance fraud or bad doctors. If we can use these subpoenas to find bad doctors taking advantage of the Medicare or the Medicaid system, why can we not use these subpoenas to track down a terrorist? We are not talking about medical personal records of anybody. We are talking about financial records.

Let us say theoretically, since there have been no abuses, let us say hypothetically al-Zawahiri was injured and sought medical attention. We could potentially track down the financing to locate him.

Let us suppose we had a known terrorist here in the United States that underwent plastic surgery to change his or her identity. We could track down the financial records to possibly intercept that.

These subpoenas have been used since 1996 under the Clinton administration as a tool for health care fraud investigations. If we can use these appropriately under the proper circumstances to find bad doctors, surely a national security letter can be used to track down evil terrorists.

I do not think this is a widespread tool being used on a regular basis, but there may come a time when we rue the day that we have taken away one more law enforcement tool to track down the bad guys.

Mr. NADLER. Mr. Chairman, there are no abuses we know of because they are all secret and they cannot tell us about abuses.

Mr. Chairman, I yield 1 1/2 minutes to the gentleman from Ohio (Mr. Kucinich).

Mr. KUCINICH. Mr. Chairman, I rise in strong support of the Nadler amendment to prohibit the release of medical records under section 505 of the PATRIOT Act. The PATRIOT Act was drafted in a rush to respond to a perceived need of new law enforcement powers immediately after 9/11. As such, the law must be considered a work in progress at best.

Section 505 of the PATRIOT Act authorizes FBI field office directors to collect in secret almost limitless sensitive personal information, including medical records from health insurance companies. This is done without court review or approval. This is a major invasion into the right to privacy. We must draw the line at this invasion into our personal lives.

This critical Nadler amendment provides crucial checks and safeguards. Records held by health insurance companies may include laboratory tests, medications prescribed, the results of operations and other medical procedures. The FBI has no business examining America's health records without a court order.

I believe it is a rare occurrence that the FBI would truly need access to health insurance records. For the most part, such information is not pertinent to a terrorist investigation. There is a better way. If the FBI did have a real need for such records, the FBI could simply use other legal mechanisms to gain access, and those options include judicial review and thus protection of privacy.

Protection of our personal privacy is a basic and fundamental responsibility of this Congress, and that is why the Nadler amendment elevates the condition of this Congress to where we can be in the defense of the right to privacy. Support the Nadler amendment. Support the right to privacy.

Mr. WOLF. Mr. Chairman, I yield 2 minutes to the gentleman from Iowa (Mr. King).

Mr. KING of Iowa. Mr. Chairman, I thank the gentleman for yielding me this time and for the opportunity to say a few words with regard to the Nadler amendment, an amendment that would prohibit the use of national security letters to get medical reports of all kinds. That would also include insurance company records which qualify as financial institutions.

We have another amendment on the floor of this Congress which qualifies as a sanctuary amendment. It carves out another region that terrorists then would know that they can go ahead and go in and operate on without fear of government intervention or government investigation.

In fact, there is a significant case. Suspects have bought bulk amounts of Cipro, which is the antidote for anthrax. That may be an indicator of a dirty bomb or a series of dirty bombs that could be set up and staged and the perpetrators would want to have the antidote. Could that also be the case for smallpox?

These kinds of indicators need to be available to our investigators. This creation of this fear of Big Brother, this relentless attack on the PATRIOT Act without substance is causing concern amongst the citizens. I have civil libertarian instincts within me, but I have come to the conclusion that we are far safer, the requirement that these reports come back to Congress and we review those reports, we are far safer that way than we are erring on the side of liberty safety without merit on the other side.

I think it is important that we put protections in the PATRIOT Act. The standards that have been there before with criminal investigations are higher for the PATRIOT Act, not lower. We did not expand any access into information to speak of. We made a high standard. That high standard is held and it is maintained, and the records come back before Congress without a single case of abuse; but we want to carve out another sanctuary for another issue here to placate some people who have been caused to have fear of the PATRIOT Act by a propaganda campaign across America.

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

Mr. Chairman, this amendment does not carve out a sanctuary as the gentleman says, nor do they report to Congress. They report to Congress on other things, but on section 505 they report nothing. We get no information.

All this amendment says is if the FBI thinks that your personal medical records, and that is all we are talking about, the medical records from the medical insurance company, are relevant to a terrorist investigation, they go to a judge and tell him and he says yes. They can even go to a FISA court judge in a secret proceeding.

Also, we were told they can get these records by administrative proceedings on other subjects. On other subjects they get the proceedings, they ask you for the records about yourself, and you can move to quash it. You can challenge it. They do not go to the insurance company and say give me the records about him under administrative subpoenas.

Under this section, the government can go, the FBI can go to the insurance company and get your personal medical records without even telling any judge, even in a secret proceeding, why it is necessary. All this amendment says is if they want your personal medical records, they have to tell a judge why it is relevant, in secret, why it is relevant to a terrorist investigation. They do not have to not get the records, but they have to tell a judge why it is relevant, and the judge can say it is relevant.

That is the minimal standard we should insist on for liberty. Indeed, in other amendments we say it is not good enough, and I agree. But in this amendment, that is all we are asking. For personal medical records, if the government wants to rummage through your personal medical records, they should have to say to a judge in a FISA court in a secret proceeding why they think it is relevant to an investigation. Not why there is probable cause, but why it is relevant. It is a very low standard, and if the government cannot meet that standard, they should not have your personal medical record information.

I urge my colleagues to vote for this amendment.

Mr. Chairman, I yield back the balance of my time.

Mr. WOLF. Mr. Chairman, I yield the balance of the time to the gentleman from California (Mr. Daniel E. Lungren), a former attorney general.

Mr. DANIEL E. LUNGREN of California. Mr. Chairman, let us understand first what we are talking about here. We are talking about national security letters, NSLs. They are administrative subpoenas that can be used in international counterterrorism and foreign counterintelligence investigations, not even domestic terrorist investigations. So we are limited to that category.

Secondly, some of the statements that have been made here are questionable in terms of their conclusions, that is, that there is no reporting to Congress. As a matter of fact, NSLs are reported to our intelligence committees, both the House and the Senate. Obviously, not all Members are on those committees, but it is my information that Members can go to the Permanent Select Committee on Intelligence and examine the documents presented by the Department of Justice in this regard.

The Supreme Court has upheld the use of administrative subpoenas where the demand is definite and the information sought is relevant. As with other types of subpoenas, the national security letter is a request for information and is not self-executing. In fact, they cannot enforce it. If the recipient refuses to accept the request for information, there is no enforcement mechanism. The FBI would have to obtain an enforcement order from a Federal court, not an NSL.

In fact, the Justice Department has argued both in and out of court that the current law allows for a recipient to obtain preenforcement judicial review of an NSL. As a matter of fact, some of us working on this on the Committee on the Judiciary believe that information ought to be presented to the recipient. They ought to be notified ahead of time, and that is one of the things we ought to be working on.

Mr. NADLER. Mr. Chairman, will the gentleman yield?

Mr. DANIEL E. LUNGREN of California. I yield to the gentleman from New York.

Mr. NADLER. Mr. Chairman, a NSL, unlike an administrative subpoena, is not the target of the inquiry and has no interest in contesting or refusing it.

Mr. DANIEL E. LUNGREN of California. Mr. Chairman, I appreciate what the gentleman is saying. It is a third party. There is no doubt about it.

In some cases it is essential to be able to get that information if you are involving yourself in a counterterrorism investigation precisely because you do not want those people to know you are going after that. But the recipient of the letter has the ability to refuse to give that to the authorities.

The idea that somehow we have such an abuse of these letters flies in the face of any presentation we have had from the committees of jurisdiction, that is, the Intelligence Committees of the House and the Senate. There has been no report to us that there has been an abuse.

I think those of us on the Committee on the Judiciary can work on this if we want to refine it more, if we want to make sure that there is an affirmative presentation to the recipient to let them know they do not have to comply, if there are some sort of other protections we want to wrap around it.

But I also think it is wrong for us to try to do it in this particular venue, and especially when we have a definition of all health records. That goes beyond just personal records. The gentleman's definition is much broader than that in terms of the whole health industry, the whole health insurance industry.

I suggest this is a precipitous action by this body, and I would ask Members to vote down the gentleman's amendment.

[Begin Insert]

Ms. JACKSON-LEE of Texas. Mr. Chairman, I rise in support of the amendment authored by the Gentleman from New York, Mr. NADLER, to the Commerce-Justice-State-Science Appropriations Act for Fiscal year 2006. His proposal is simple but carriers tremendous weight in terms of protecting the Constitutional rights of individuals who live in this nation. it withholds funds from government action to issue a national security letter (NSL) for the purpose of obtaining health insurance records under any provisions amended by Section 505 of the PATRIOT Act.

Currently, under Section 505 of the PATRIOT Act, the FBI is authorized to issue self-authorized secret national security letters to insurance providers, which opens the door to he secret seizure of highly personal medical information.

Section 505 of the PATRIOT Act authorizes FBI field office directors to collect, in secret, almost limitless sensitive personal information, including medical records, from health insurance companies that are not under investigation themselves but have customers whose records the government wants by simply issuing a ``national security letter'' carrying the weight of law on the FBI's own assertion that the request is relevant to a national security investigation.

This unfettered access to information that has been held to be Constitutionally protected since the passage of the Bill of Rights must be checked, and the Nadler Amendment provides that check in the context of fulfilling funding requests for the Department of Justice. Not only is the scope of the searchable material under this provision unconstitutional but the prohibition on notice to the individual searched contravenes the notions of privacy that have formed the foundation of our fundamental freedoms.

Records held by health insurance companies about their customers must be turned over regardless of whether they concern financial matters, because ``financial records'' are defined as ``any record held by a financial institution pertaining to a customer's relationship with that institution.'' The records sought may include laboratory test results, medications prescribed, and reports that indicate the results of operations and other medical procedures. This kind of authority might well be described as ``terroristic'' to Americans in and of itself.

The existence of alternative ways of accessing this kind of information with grand jury subpoenas and orders issuing under Section 215 justify offering this important amendment. This section allows the FBI to obtain virtually any business record simply by asserting the information is ``relevant'' to a national security investigation. It can be used to obtain records of individuals who are not suspected or accused of any crime.

Citing Section 215, the government may, unbeknownst to the suspected person, secretly obtain employment, medical, and financial records, membership lists, and even a key to one's office. The only oversight is an annual report to Congress of the number of warrants issued.

Mr. Chairman, I have been involved in the limited oversight that the House Judiciary Committee has begun. On Friday, June 10, 2005, the manner in which the Committee Majority Leadership conducted that hearing is only indicative of the manner in which the highly controversial provisions of the PATRIOT Act have been foisted upon the American people. I support the Gentleman's amendment and urge my colleagues to do the same.

[End Insert]

The CHAIRMAN. All time has expired.

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

The amendment was rejected.