Featured — November 12, 2009 at 12:50 pm

NSJ Analysis: House Judiciary Committee Passes PATRIOT Act Reauthorization

By NSJ Staff Writer

The House Judiciary Committee recently voted to reauthorize certain expiring provisions of the PATRIOT Act as part of the USA PATRIOT Amendments Act of 2009.  The bill, H.R. 3845, sponsored by Rep. John Conyers, proposes privacy protections that in many respects go beyond those included in the bill that recently passed through the Senate Judiciary Committee.

The House Judiciary bill would make several significant changes to the three expiring provisions of the PATRIOT Act, as well as to the use of National Security Letters (NSLs).  The most important changes involve these provisions:

Section 215: This section of the PATRIOT Act, also known as the “library records provision,” allows the FBI to apply to a Foreign Intelligence Surveillance Court judge for an order requiring the production of any tangible things (including books, records, papers, documents, and other items).

The most significant change to this provision in the House Judiciary bill is that it limits the circumstances under which the FBI may obtain bookseller or library records that contain personally identifiable information.  The bill would limit the acquisition of such records to instances when the records pertain to:  1) a foreign power or an agent of a foreign power; 2) the activities of a suspected agent of a foreign power; or 3) an individual in contact with, or known to, a suspected agent of a foreign power.

This change would represent a significant departure from current law, which does not treat library or bookseller records differently from any other records.  The proposal also differs from the Senate Judiciary Committee bill, which would restrict library records in the same manner, but not impose the additional restrictions on bookseller records.

National Security Letters: National Security Letters allow the FBI to obtain personal information from telecoms and financial institutions (including credit reports, as well as data from telephone and e-mail communications and Internet searches).

Under current law, the FBI can obtain such records by simply certifying that they are “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.”  Both the House Judiciary bill and the Senate Judiciary bill would place a higher burden on the government to show that the records sought are relevant to an authorized investigation.  The House Judiciary bill, however, goes beyond the Senate Judiciary bill in that it would limit the use of NSLs to the same three categories of circumstances as specified above.

Gag Orders: Both Section 215 orders and NSLs carry nondisclosure orders, or “gag orders,” prohibiting recipients of the records request from disclosing to anyone that they received the request.

Under current law, recipients of Section 215 orders may only challenge the gag orders in court after one year has passed.  In addition, for NSLs, the government may certify that a gag order is necessary to prevent harm that could be caused from a recipient disclosing receipt of the letter, and a reviewing court must treat that certification as conclusive.  Both the House Judiciary bill and the Senate Judiciary bill would eliminate the one year waiting period for challenging Section 215 gag orders.  For NSLs, the Senate Judiciary bill would require that a reviewing court give substantial weight to the government’s determination on the need for the order, but not treat that determination as conclusive.  The House Judiciary bill goes further in this regard, as it does not specify any particular degree of deference that the reviewing court should give the government’s determination.

Roving Wiretaps: Section 206 of the PATRIOT Act authorizes the FBI to conduct surveillance on the communications of an individual under investigation regardless of the communication device used by that person.

Current law does not require the target of the surveillance to be specifically identified.  The House Judiciary bill would require that the target of the application be 1) a foreign power; 2) an agent of a foreign power; or 3) a specific individual.  In contrast, the Senate Judiciary Committee bill does not make any relevant changes to this provision.

Lone-Wolf: The PATRIOT Act’s lone-wolf provision allows the FBI to conduct surveillance of non-U.S. persons located in the United States if there is probable cause to believe such persons are engaged in or preparing acts of international terrorism.  The House Judiciary bill would allow this provision to expire, while the Senate Judiciary Committee bill extends it without any alterations.

NSJ will continue to track developments in the reauthorization process, including a separate bill recently introduced by Rep. Silvestre Reyes, Chairman of the House Permanent Select Committee on Intelligence.  To view the House bill in its original form, please see here.  An amendment offered by Representative Conyers, which was accepted in committee, may be found here.  The Senate version of the bill may be found here.

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