Three USA Patriot Act provisions set to expire

Congress action on renewals stalled in midst of healthcare debate.

UPDATE: The expiring provisions of the Patriot Act were extended through February, so that the House and Senate can work on a compromise on the final bill.

By Jamie Loo, First Amendment reporter

December 14, 2009

The government’s authority to wiretap and perform surveillance on people through the U.S.A Patriot Act could change soon, as Congress prepares to consider provisions that expire at the end of this year.

Two bills are making their way through the U.S. House of Representatives and Senate, which renew the three expiring provisions with some amendments and also tackles the controversial National Security Letters (NSLs). If passed, these provisions would be renewed through 2013.

Here is a break down of the soon-to-be expired provisions:

-The roving wiretaps provision allows the government to track a target through multiple wiretaps without specifying the person or communication devices that are being monitored. This is in cases where there is information that the target may be trying to thwart other surveillance. For example, it would apply to a person who uses disposable cell phones or rapidly changes cell phone numbers to potentially elude authorities. The roving wiretaps provision was added to FISA in 2001 and since then has been used an average of 22 times each year, according to the U.S. Attorney General’s office. Both the Senate and House bills renew the roving wiretaps provision. The House version requires the government to name the person or describe the place under surveillance.

-The business records provision, also known as Section 215, allows a FISA court to issue a warrant for “any tangible thing” that is relevant to a terrorist investigation from all businesses and some libraries. Although the court has issued 220 orders between 2004 and 2007 to produce records, the U.S. Inspector General’s office noted that no major case has developed from these records such as the disruption of a terrorist plot. The House and Senate bills throw out the presumption that the government is justified in obtaining records and adds an amendment that requires the government to show that the records are relevant to an investigation. Library circulation records and patron lists are given more protection in the bills, and the House bill includes booksellers. The House bill also eliminates a provision that requires a target to wait one year before challenging a records warrant in court.

-The “lone wolf” provision. A “lone wolf” is a non-U.S. citizen who “engages in international terrorism activities” but may not actually be linked to a foreign power such as a terrorist organization. Using this definition a “lone wolf” can be considered an agent of a foreign power even if that organization is unknown, and allows the government to perform secret surveillance on them. The Senate bill renews this provision and the House version lets it expire. The government has never used this provision since it was enacted in 2004.

“What this means, in practice, is that the government must know a great deal about the target, including the target’s purpose and plans for terrorist activity (in order to satisfy the definition of ‘international terrorism’), but still be unable to connect the individual to any group that meets the FISA definition of a foreign power,” said assistant attorney general Ronald Welch in a letter to the Senate’s Select Committee on Intelligence.

President Barack Obama and U.S. Attorney General Eric Holder have endorsed the Senate version of the bill to the dismay of many civil liberties groups. As a senator, Obama wanted more civil liberty protections in the USA Patriot Act. This should come as no surprise said Julian Sanchez, research fellow with the libertarian Cato Institute, because executives will not usually vote to limit their own powers.

American Civil Liberties Union lobbyist Michelle Richardson said the group is supporting the House bill because there are some stronger protections in it to minimize the number of innocent people who may be targeted. The courts are given a more meaningful role in evaluating warrant applications before wiretaps take place, she said. Richardson said the House bill protects more library materials than the Senate bill, such as sign-in sheets at meetings and Web sites visited on library computers. Richardson said overall the government’s surveillance authority is still too broad and the ACLU wants the final bill to limit records collection to investigations on suspected terrorists and those with terrorist ties.

“Neither bill really goes far enough (in protecting individual rights),” Richardson said.

Sanchez said the House bill is a “reasonable common sense approach.” The House bill is more protective of civil liberties, he said, with light restrictions that still allow the government to conduct legitimate investigations.

Although the National Security Letters (NSLs) provisions are not expiring, they’ve generated a considerable amount of controversy on Capitol Hill. NSLs require third parties such as financial institutions, Internet service providers, and telephone companies, to turn over sensitive information to the FBI without a court order. The NSLs also can come with gag orders which prohibit companies from disclosing that records were released to the government.

Sanchez said things such as cell phone, credit card, medical and post office records are covered by NSLs. He said the volume of letters issued and the abuses found should be a cause for concern. In 2008 nearly 25,000 NSLs were issued, and between 2003 and 2005 there were more than 143,000 NSL requests. An Inspector General’s report in 2007 found “widespread and serious misuse of the FBI’s national security letter authorities.” The abuses included improper requests under the NSL statutes and unauthorized record collection, in some cases before an NSL was even issued. Sanchez said it’s likely that many NSL targets are not even remotely related to terrorist activities. The information the FBI has collected is now being stored by the government, he said, for an indefinite period of time.

The House and Senate bills place a larger burden on the FBI and other agencies to provide written evidence that there are reasonable grounds to believe information sought through an NSL is relevant to an investigation. The House bill also requires the government to give its reasons for requesting an NSL when seeking information on a foreign power or agent of a foreign power in an investigation. Both the Senate and House bills require the FBI to show that an NSL is relevant to a national security investigation and allows the recipient of an NSL with a gag order to challenge the letter in court at any time. The bills have varying standards for how courts determine whether or not to lift a gag order.

With the Senate in the middle of the healthcare debate, Congress has a short window of time to act on the USA Patriot Act provisions. Last Tuesday the Washington Post reported that the expiring provisions may be added onto a defense spending bill. Both the House and the Senate appear to agree that the expiring provisions must be renewed in some form. Many Democrats are pushing for amendments with more civil liberty protections, while many Republicans call for keeping most of the current rules.

In September, Democratic Sen. Russ Feingold cited the Inspector General report and said that “there can no longer be any doubt that granting overbroad authority leads to abuses” and that this is the time to reform federal surveillance laws.

“That flawed legislation (USA Patriot Act) greatly expanded the NSL authorities, essentially granting the FBI a blank check to obtain some very sensitive records about Americans, including people not under any suspicion of wrong-doing, without judicial approval. Congress gave the FBI very few rules to follow, and should not be all that surprised at the result,” Feingold said.

Republican Sen. Kit Bond said Congress has placed heavy demands on the FBI since Sept. 11 and that more restrictions will make it difficult for intelligence agencies and law enforcement to do their jobs.

“Now is not the time to saddle them (FBI and law enforcement) with unnecessary administrative burdens or to impose such conditions on the use of certain tools that they become useless,” Bond said. “With so many current and clear cut examples of domestic terrorist threats before our own eyes, I have to wonder why anyone thinks this is a good time to be experimenting with the vital authorities used to keep us safe.”

Patriot Act provisions table
This is a quick glance at the amendment differences between the three expiring provisions of the USA Patriot Act in House Bill 3845 and Senate Bill 1692. These are the proposals as they were presented to the House and Senate judiciary committees. The bills also include changes to the National Security Letters (NSLs) provision which are not expiring.