The Administration has scored a number of key victories in the War on Terror over the past four years, many as a result of expanded information sharing and investigative tools provided by the USA PATRIOT Act. On December 31, 2005, 16 key provisions of the USA PATRIOT Act will expire unless the Senate acts to reauthorize them.
After months of debate—including 23 Congressional hearings with over 60 witnesses—the Senate must act to reauthorize the USA PATRIOT Act before these key provisions expire. Last week, the House of Representatives voted to reauthorize the bill with strong bipartisan support. Now, four years after voting 98-1 to approve the USA PATRIOT Act, it is time for the Senate finish the job and allow law enforcement to maintain the vital tools it needs to keep America safe.
Despite a four-year track record with no verified civil liberties abuses, the current bill adds more than 30 new significant civil liberties safeguards. Unless the Senate reauthorizes the USA PATRIOT Act, these additional civil liberties protections will also be lost. These protections include:
Sections 102-103 (sunsets): The reauthorization bill includes four year sunsets on three provisions: section 206, which authorizes FISA multipoint (“roving”) electronic surveillance; section 215, which amended the Foreign Intelligence Surveillance Act’s (FISA) business records provision; and the “lone wolf” provision from the Intelligence Reform and Terrorism Prevention Act of 2004.
Sections 106 and 106A (amending section 215): The reauthorization bill adds significant new safeguards to section 215 court orders. Specifically it: requires high-level approval for requests for sensitive categories of records such as library records and medical records; clarifies the appropriate standard for obtaining such an order; explicitly allows a judge to deny or modify an application; requires the use of so-called “minimization procedures” to limit retention and dissemination of information concerning United States Persons and protect privileged documents; explicitly clarifies that a recipient may disclose receipt to an attorney or others necessary to comply with the order; provides explicitly for judicial challenges to any section 215 order; for the first time requires public reporting of the number of section 215 orders; requires additional and specific classified reporting to congressional overseers; and requires the Inspector General to conduct an audit of each Justice Department use of section 215.
Section 107 (amending section 212): Section 107 adds a reporting requirement with respect to good-faith emergency disclosures to the government by electronic communications service providers and makes technical fixes to the law to clarify congressional intent.
Section 108 (amending section 206): Section 108 imposes several additional safeguards on the use of multipoint electronic surveillance under FISA. Specifically it: requires additional specificity from an applicant before “roving” surveillance that follows a target from cell phone to cell phone may be authorized; clarifies that a judge granting surveillance must ensure in the order that the surveillance is authorized only for the target in the application; requires increased specificity for applications for surveillance where a description of the target, rather than the target’s actual identity, is provided to the court, so that each application describes a single, unique target; requires investigators to inform the court within 10 days when “roving” surveillance authority is used to target a new facility—such as when a terrorist or spy changes to a different cell phone; requires investigators to inform the court on an ongoing basis of the total number of places or facilities under surveillance pursuant to a “roving” surveillance order; and requires additional reporting to Congress.
Section 109: Section 109 requires additional reporting to Congress on the use of FISA authorities and the FISA court to develop and publish rules of procedure.
Section 114 (amending section 213): Section 114 adds several additional protections on the use of delayed-notice search warrants. Specifically it: requires a court to set a deadline for the initial period of delay, one that presumptively must be within 30 days of the search; requires the applicant to provide the court with an updated showing of necessity before the delay period may be extended; provides that any extension should be a period of 90 days or less except in exceptional circumstances; and requires public reporting on the use of delayed notice search warrants.
Sections 115-119 (regarding National Security Letter authorities): The reauthorization bill adds significant new safeguards to each of the National Security Letter (NSL) statutes. The report: clarifies that a recipient may disclose receipt to an attorney or others necessary for compliance; provides explicitly for a judicial challenge to an NSL; provides that a nondisclosure order does not automatically attach to an NSL; provides explicit judicial review of a nondisclosure requirement accompanying an NSL; requires the Justice Department official to re-certify that nondisclosure is necessary, or else to let the nondisclosure provision lapse, if a nondisclosure requirement is challenged more than a year after the NSL issues; provides that only certifications by a few Senate-confirmed officials, made at the time a petition is filed, are entitled to a heightened degree of deference; adopts the Senate passed (by unanimous consent) standard of review for non-disclosure; for the first time, requires public reporting on the use of NSL authorities; requires additional reporting to Congress on the use of NSL authorities; and requires the Inspector General to conduct an audit of the Justice Department’s use of NSLs.
Section 126: Section 126 requires a report to Congress on any use of data-mining programs by the Department of Justice.