PATRIOT Act Extension?
- Senator McConnell Seeks Renewal of NSA Bulk Collection Program: Senate majority leader Mitch McConnell has introduced a bill that would extend the Patriot Act until 2020. Specifically, S. 1035 would renew the controversial Section 215 authorities for the NSA's telephone record collection program. The 215 authority is set to expire on June 1. EPIC urged the President and the Attorney General not to renew the 215 order after it became clear that the NSA routinely collected the telephone records of US citizens. EPIC previously petitioned the Supreme Court to suspend the program, arguing that the NSA program exceeded the section 215 legal authority. (Apr. 23, 2015)
- Congressional Leaders Strike Deal to Extend Patriot Act: Lawmakers in the House and the Senate have reached an agreement that would renew key provisions of the Patriot Act, though amendments are still possible. One of the sections, known as the "lone wolf" provision, allows terrorist investigations of non-citizens without having to show connections to a terrorist organization. The Patriot Act expanded the authority of law enforcement and intelligence agencies to monitor private communications and access personal information. Among other things, the Patriot Act amended the Foreign Intelligence Surveillance Act (FISA) to allow the FBI to use National Security Letters for In place of court-approved warrants. In 2010, 24,287 NSLs were issued, up 64% from the previous year. For more Information, see EPIC: USA Patriot Act and EPIC: Foreign Intelligence Surveillance Act. (May. 20, 2011)
- Senate, House Pass Limited Patriot Act Extensions: The Senate and the House each passed short-term extensions of the Patriot Act. The Senate passed a three-month extension while the House extended the provisions until Dec. 8. The extensions included the “lone wolf” provision permitting surveillance of individuals and groups not connected to identified terrorist groups, the “library law” provision granting access to “any tangible items” of individuals under surveillance, and the provision authorizing the FBI’s use of roving wiretaps. A Judiciary Committee hearing on Senator Leahy’s proposal to extend the provisions until 2013 with increased oversight is expected soon. Senator Patrick Leahy (D-VT) opposed efforts to extend the provisions that “undercut important oversight and government accountability of these intelligence gathering tools.” EPIC has in the past urged the Senate Judiciary Committee to require the Attorney General to report to Congress on potentially unlawful investigations. For related information, see EPIC: USA Patriot Act and EPIC: PATRIOT FOIA Litigation. (Feb. 16, 2011)
- Patriot Act Extension Fails in House Vote: A House vote on extending provisions of the Patriot Act that will lapse on February 28 failed. The three provisions concerned authorizing the FBI’s use of roving wiretaps, granting the government access to “any tangible items” of individuals under surveillance, and allowing the surveillance of individuals and groups not connected to identified terrorist groups. The House bill would have extended these provisions until December. The Senate Judiciary Committee is considering a bill that would extend the expiring provisions to 2013. Senator Patrick Leahy (D-VT) issued a statement explaining that he did not support efforts to extend the provisions that “undercut important oversight and government accountability of these intelligence gathering tools.” EPIC, through the Freedom of Information Act, recently obtained from the Intelligence Oversight Board, internal reports of intelligence law violations by the FBI that do not comply with Attorney General guidelines for oversight. EPIC has in the past urged the Senate Judiciary Committee to require the Attorney General to report to Congress on potentially unlawful investigations. For related information, see EPIC: USA Patriot Act and EPIC: PATRIOT FOIA Litigation. (Feb. 9, 2011)
- Senator Leahy Urges Attorney General to Implement Patriot Act Reforms: Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) has sent a letter to Attorney General Eric Holder regarding key privacy safeguards for the PATRIOT Act. The Senate Judiciary Committee passed the PATRIOT Act Sunset Extension Act earlier in the year, which included many reforms, but the full Senate did not act on the measure Because the administration supported the reforms within the bill, Sen. Leahy advised the Attorney General that he can voluntarily adopt many of the reforms even without Congressional action. Senator Leahy expressed particular concern about the possible misuse of National Security Letter authority. Attorney General Holder will appear before the Senate Judiciary Committee on Wednesday, April 14, 2010 for an oversight hearing. For more information, see EPIC: National Security Letters. (Apr. 14, 2010)
- Congress Renews PATRIOT Act without Privacy Amendments: After months of debate, Congress has voted to extend the three expiring provisions of the USA PATRIOT Act for one year with no alteration. The provisions, concerning business records, roving wiretaps, and "lone wolf" investigations, give federal law enforcement agencies broad powers to gather information on Americans. Both the Senate and House Judiciary committees proposed bills to renew these provisions with reforms that would establish greater oversight, but neither bill went to a floor vote. For more information, see EPIC PATRIOT Act, EPIC PATRIOT Act Extension. (Mar. 1, 2010)
- Inspector General Finds "Egregious Breakdown" in FBI Oversight: The Department of Justice Office of the Inspector General has issued a report on the FBI's use of "exigent letters" and other means to obtain telephone records from three unnamed phone companies. The 300-page report concludes that many of the FBI's practices "violated FBI guidelines, Department policy," and the Electronic Communications Privacy Act. The report also found that "the FBI sought and acquired reporters' telephone toll billing records and calling activity information" through improper means. The report concludes that "the FBI's initial attempts at corrective action were seriously deficient, ill-conceived, and poorly executed" and makes several recommendations for improvement. In a 2007 letter to the Senate Judiciary Committee, EPIC recommended that the FBI's National Security Letter authority be repealed. For more information, see EPIC National Security Letters. (Jan. 21, 2010)
- House Members Introduce PATRIOT and FISA Reform Bills: Representatives Conyers, Nadler, and Scott introduced two bills today that would amend the PATRIOT Act and the Foreign Intelligence Surveillance Act. The Patriot Amendments Act of 2009 will enhance reporting and judicial oversight of law enforcement powers, including the National Security Letter process. The FISA Amendments Act of 2009 will place new limits on the government's ability to collect and store Americans' communications without a warrant and repeals retroactive immunity. For more information, see EPIC FISA, EPIC PATRIOT Act. (Oct. 20, 2009)
- PATRIOT Act Revisions Introduced in Senate: Today, Sen. Russ Feingold (D-WI) and seven cosponsors introduced the Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act. The bill would amend the PATRIOT Act, the FISA Amendments Act, and other surveillance and intelligence laws. Among other changes, the JUSTICE Act would reform the National Security Letter process, revise the guidelines for business records orders, eliminate the catch-all provision for "sneak-and-peek" searches, and add new safeguards for FISA roving wiretaps. The JUSTICE Act would also repeal retroactive immunity for telecommunications companies, and is supported by many civil liberties organizations. For more information, see EPIC USA PATRIOT Act, EPIC FISA, EPIC Wiretapping, and EPIC National Security Letters. (Sep. 17, 2009)
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) introduced a plethora of legislative changes which significantly increased the surveillance and investigative powers of law enforcement agencies in the United States. The Act did not, however, provide for the system of checks and balances that traditionally safeguards civil liberties in the face of such legislation.Legislative proposals in response to the terrorist attacks of September 11, 2001 were introduced less than a week after the attacks. President Bush signed the final bill, the USA PATRIOT Act, into law on October 26, 2001. Though the Act made significant amendments to over 15 important statutes, it was introduced with great haste and passed with little debate, and without a House, Senate, or conference report. As a result, it lacks background legislative history that often retrospectively provides necessary statutory interpretation.
The USA PATRIOT Act retains provisions that appreciably expanded government investigative authority, especially with respect to the Internet. Those provisions address issues that are complex and implicate fundamental constitutional protections of individual liberty, including the appropriate procedures for interception of information transmitted over the Internet and other rapidly evolving technologies.
Amendments and Renewals
Many sections of the Patriot Act bore sunset provisions, which would have caused them to expire automatically in the absence of legislative action on December 31, 2005. In 2005, therefore, Congress drafted and then passed the USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. 109-177, 120 Stat. 192 (2006). This bill made some of the original provisions permanent, modified others, and extended some for an additional four years, setting a new sunset date of December 31, 2009.
The Protect America Act of 2007 made several significant changes to the structure of FISA surveillance. The Act became law on August 5th, 2007. Lawmakers during the bill's short effective period spent the time discussing the reauthorization of these changes or further changes to these surveillance powers. The Protect America Act altered the definition of electronic surveillance; created additional procedures for authorization of intelligence gathering on a program-wide basis; and set up a procedure for the courts to review those programs. These changes were set to expire six months after the Act going into effect, with some exceptions.
To address the expiration of the Protect America Act's provisions, Congress moved forward on drafting and passing the FISA Amendments Act of 2008, which extended or made permanent many of the provisions of the 2007 act. It also restructured much of the Foreign Intelligence Surveillance Court (FISC) and changed its relationship with the intelligence-gathering agencies. It did this by authorizing a number of surveillance methods without requiring those agencies to seek warrants from the FISC.
Three provisions of the Act are due to expire on December 31, 2009. The Department of Justice has asked that the provisions be renewed unchanged, but has expressed willingness to consider additional privacy protections as long as they do not reduce the provisions' efficacy. So far, one bill has been introduced in the Senate that, if passed, would renew the expiring provisions with modifications, as well as modify a number of other PATRIOT Act and FISA provisions. It is called the Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act, introduced by Senator Russ Feingold (D-WI). The bill would amend the PATRIOT Act, the FISA Amendments Act, and other surveillance and intelligence laws. Among other changes, the JUSTICE Act would reform the National Security Letter process, revise the guidelines for business records orders, eliminate the catch-all provision for "sneak-and-peek" searches, and add new safeguards for FISA roving wiretaps. The JUSTICE Act would also repeal retroactive immunity for telecommunications companies, and is supported by many civil liberties organizations.
Section 215 of the PATRIOT Act grants the FBI the authority to request an order "requiring the production of any tangible things (including books, records, papers, documents, and other items)" relevant to an investigation of international terrorism or clandestine intelligence activities. Although the amendment is entitled "Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations," the scope of the authority is far broader and applies to any records relevant to the individual. This amendment, which overrides state library confidentiality laws, permits the FBI to compel production of business records, medical records, educational records and library records without a showing of "probable cause" (the existence of specific facts to support the belief that a crime has been committed or that the items sought are evidence of a crime). Instead, the government only needs to claim that the records may be related to an ongoing investigation related to terrorism or intelligence activities. Individuals served with a search warrant issued under FISA rules may not disclose, under penalty of law, the existance of the warrant or the facts that records were provided to the government. The final version of this provision contains an important clause -- which was not in the Administration's original bill -- restricting the potential misuse of the law. Although the USA PATRIOT Act deleted the requirement that any records requested pertain to an agent of a foreign power (or a foreign power), the Act prohibits investigation of a United States person solely on the basis of activities protected by the First Amendment. The USA PATRIOT Act retains the requirement of pre-existing law, permitting access to records only upon court order.
According to the Federal Bureau of Investigation, the Section 215 power has been used more than 250 times between 2004 and 2009 to conduct investigations. The Department of Justice has asked for this power to be renewed unchanged. The JUSTICE Act would reauthorize the power, with the following changes: It would permit one-year gag orders that can be infinitely renewed, but only if the FISC found that the gag is narrowly tailored to address specific harms that would result from disclosure. It would require that the target of an order be notified before records obtained can be used in a subsequent hearing and that the target have the chance to challenge such a use. The bill would also establish a reasonableness standard for judicial review of the gag orders and require that the FISC approve the minimization procedures in place for records acquired under Section 215.
Section 206 expands FISA to permit "roving wiretap" authority, which allows the interception of any communications made to or by an intelligence target without specifying the particular telephone line, computer or other facility to be monitored. Prior law required third parties (such as common carriers and others) "specified in court-ordered surveillance" to provide assistance necessary to accomplish the surveillance. The amendment extends that obligation to unnamed and unspecified third parties.
Such "generic" orders could have a significant impact on the privacy rights of large numbers of innocent users, particularly those who access the Internet through public facilities such as libraries, university computer labs and cybercafes. Upon the suspicion that an intelligence target might use such a facility, the FBI can now monitor all communications transmitted at the facility. The problem is exacerbated by the fact that the recipient of the assistance order (for instance, a library) would be prohibited from disclosing the fact that monitoring is occurring.
The "generic" roving wiretap orders raise significant constitutional issues, as they do not comport with the Fourth Amendment's requirement that any search warrant "particularly describe the place to be searched." That deficiency becomes even more significant where the private communications of law-abiding American citizens might be intercepted incidentally.
FBI director Robert Mueller reports that over 140 roving wiretaps have been issued between 2004 and 2009. The Department of Justice has asked for this power to be renewed unchanged. The JUSTICE Act would reauthorize the roving wiretap power but eliminate the authorization of roving wiretaps that fail to identify either the target or the device to be tapped. The bill would also add the requirement that surveillance agents ascertain the presence of the target before beginning surveillance of a particular device. This ascertainment requirement is already required for criminal roving wiretaps but is not currently part of Section 206.
"Lone Wolf" Provision
Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004 is not part of the PATRIOT Act itself, but is also due to expire on December 31, 2009. This is the so-called "Lone Wolf" provision, which allows investigation into terrorists not directly connected to a foreign nation or organization. The other FISA provisions require that targets of wiretaps and other warrantless investigations be "agents of a foreign power," with the definition of foreign power including organizations such as al Qaeda. Section 6001 authorizes investigations on individuals even in the absence of such a link.
The government reports never having used the Lone Wolf surveillance power, but has requested its renewal.
In addition to the expiring provisions, the reauthorization debate provides an opportunity for the legislature to consider other changes or additions to the Act. The Department of Justice has asked for this power to be renewed unchanged.
Other Parts of the JUSTICE Act
The JUSTICE Act would also make the following additional changes to FISA and the Patriot Act:
- National Security Letters (NSLs) - The Act would make considerable changes to the NSL statutes. It would replace the current "relevance" standard with on requiring individualized suspicion, and limit the scope to prevent obtaining sensitive personal and financial data without a court order. It would also require new minimization and destruction procedures, a method for judicial review, and more detailed congressional reporting. The bill would also attempt to rectify First Amendment violations found by the Second Circuit in Doe v. Mukasey, 549 F.2d 861 (2008) and the illegal use of exigent letters as determined by the Inspector General.
- Sneak & Peek Searches - The Act would keep the current rule allowing delayed notification searches when immediate notice would endanger an individual's life or safety or result in flight, destruction of evidence, or intimidating witnesses. It would eliminate the catch-all provision that currently allows such searches in any circumstance that would seriously jeopardize the investigation, a very broad standard. It would also establish notification periods (with unlimited extensions at the court's discretion) and a statutory exclusionary rule to encourage compliance.
- Pen Registers and Trap and Trace - The JUSTICE Act would maintain this power largely as-is, but raise the standard from relevance to suspicion, as with the proposed NSL change. It would also require minimization procedures and delayed notification to targets.
- Telecommunications Immunity - The Act would repeal the retroactive immunity provision in the FISA Amendments Act of 2008.
- Bulk Collection - The Act would continue to allow warrantless collection under the FISA Amendments Act, but it would prevent the government from engaging in bulk collection of all communications between the United States and the rest of the world for data mining.
- Reverse Targeting - The Act would require a court order for overseas wiretaps if a significant purpose of the surveillance is to collect the communications of a United States person. This would attempt to prevent the government from using its powers to wiretap foreign agents without a warrant as a pretense to instead target Americans.
- Unlawfully Obtained Information - This provision of the Act would limit the government's ability to use information obtained unlawfully under these procedures, to create an incentive to follow them.
- Americans' International Communications - The Act would attempt to protect communications between the United States and abroad by minimizing access to communications that have one endpoint in the United States unless the conversation involves terrorism, or if someone's safety is at stake, or if a court order is acquired.
- Computer Trespass - Currently, the Patriot Act allows for computer owners subject to attack to giver the government permission to monitor trespassers without a warrant. The JUSTICE Act would clarify the definition of trespasser to exclude those with permission, require an ongoing pattern of hacking, and limit the length of such surveillance to 96 hours before requiring a warrant. It would also require annual reports to Congress on the use of power.
- Use of FISA Evidence in Criminal Trials - The Bill would apply the procedures of the Classified Information Procedures Act to criminal cases and protective orders in civil cases to make it possible for litigants to challenge surveillance in court.
- Nationwide Court Orders - Under the PATRIOT Act, a federal judge can issue a court order for electronic evidence outside of his or her district. The JUSTICE Act would not change this, but it would enable a recipient such as a regional Internet Service Provider to challenge the the order either in the district of issue or in the district in which the recipient is located.
- Domestic Terrorism - The Act would redefine domestic terrorism to ensure that the term does not include non-terrorism crimes, especially acts of civil disobedience.
- Material Support of Terrorism - The Act would also redefine "material support" of terrorism to require that a person have knowledge or intent that a given action further terrorist activity.
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Communications Law and Policy
Jerry Kang and Alan Butler