Conyers Introduces PATRIOT Compromise
(Washington) – House Judiciary Committee Ranking Member John Conyers, Jr. (D-Mich.) has introduced the “USA PATRIOT Act Sunset Extension Act of 2011,” the House counterpart to a bipartisan bill that recently passed the Senate Judiciary Committee. The proposal makes meaningful improvements to the PATRIOT Act and related authorities, and has the support of the Obama Administration and the intelligence community. The bill is co-sponsored by Ranking Member of the House Permanent Select Committee on Intelligence, Dutch Ruppersberger (D-Md).
“In sixteen days, three provisions of the Foreign Intelligence Surveillance Act are set to expire,” said Conyers. “It is clear that many members of both parties still have serious concerns about the PATRIOT Act, including these three provisions. But instead of discussing these concerns, the majority has introduced legislation that would make the Lone Wolf authority permanent and extend the business records and roving wiretaps for six years. Their bill would make no improvements to the PATRIOT Act. It includes no new protections for privacy. It requires no reporting to Congress. I do not support this approach.
“Instead, we should be open to negotiation and compromise. I have introduced a bill that has already been reported out by the Senate Judiciary, a bill that has bipartisan support and the backing of the intelligence community. For many, this bill will not go far enough; for others, it may go too far. For me, the bill represents the reasonable middle ground. With the short time we have—and with the need to find a measure that can win the support of the Senate and the Administration—I think this bipartisan compromise measure is the proper vehicle for moving this issue forward.”
A summary of the USA PATRIOT Act Sunset Extension Act of 2011 follows:
The USA PATRIOT Act Sunset Extension Act of 2011
A Compromise with Broad Support– This bill is essentially identical to the compromise measure that recently passed the Senate Judiciary Committee with bipartisan support (Mike Lee of Utah voted in favor). It makes meaningful improvements to the Patriot Act and related authorities, yet has the support of the Administration and the intelligence community.
New Sunsets– Section 2 of the Bill reauthorizes the Business Records, Lone Wolf, and Roving Wiretaps provisions for two and a half years - until December 2013. For the first time, it puts a sunset in the use of National Security Letters. Finally, it moves the sunset on the FISA Amendments Act from the end of 2012 to 2013 so that all these inter-related surveillance authorities can be considered together in a non-election year.
Factual Basis Requirement for Business Records Orders– Section 3 modifies the standard for obtaining a FISA court order to obtain business records. It eliminates the overbroad presumption of relevance in these cases, and requires the Government to provide a written statement of the facts and circumstances that justify the applicant’s belief that the tangible things sought are relevant. (DOJ says it already does this as a matter of practice so this would not be an operational burden.) The bill contains additional protections for bookseller or library records. These can be obtained only if the Government shows a direct connection between the records and a terrorist or other agent of a foreign power.
Improvements to National Security Letter Process–The bill makes a number of changes to NSL practices and procedures, in response to the numerous abuses of this tool.
Gag Orders — Section 5 clarifies the standards for including a gag order in a national security letter. Section 6 significantly improves the process for challenging these gag orders, eliminating the one-year waiting requirement in current law and removing the power of high level government officials to foreclose judicial review by “conclusively certifying” that the gag order is needed. This section also corrects the constitutional defects in NSL gag orders found by the Second Circuit Court of Appeals in Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008), and implements the court’s suggestion for a constitutionally sound process.
Factual Basis Requirement – Section 7 requires the FBI to keep a written record of the facts and circumstances on which it relies to support certain NSLs.
Minimization Procedures – Requires DOJ to implement minimization procedures for NSL collected information, just as it does for FISA collected information, and requires periodic review and notice to Congress regarding changes to these procedures. (DOJ has already begun implementing such procedures, as an administrative matter.)
Roving Wiretaps– Section 15 tightens up the use of roving wiretaps by requiring a description “with particularity” of the target of such wiretaps in cases where the targets name or identify is not known. This will eliminate the possibility of so-called John Doe roving wiretaps.
Sneak and Peek Searches-- Current law requires notification of a sneak and peek (or delayed notice) search within 30 days. Section 11 shortens this time to seven days, or a longer period if specifically justified.
Improved procedures for FISA Pen Registers and Trap and Trace Devices-- Section 4 modifies the standard for Pen Register and Trap and Trace devices, which collect info on calls or emails to and from a particular communications facility. The bill requires the government to provide a written statement of the facts and circumstances showing that the information to be collected is relevant to a national security investigation and so strengthens judicial oversight. This section also requires minimization procedures for this type of collection, which are not required under current law, and makes those procedures subject to court review.
Enhanced Public Reporting on NSLs and FISA– Sections 8 and 9 require enhanced public reporting of the number of NSLs issued each year, and an annual unclassified report on how FISA authorities are used, including their impact on the privacy of United States persons. This report shall be readily accessible on the Internet.
Enhanced Audits– Section 10 requires the DOJ Office of Inspector General to conduct audits on the use during 2007 – 2011 of the Business Records provision, NSLs, and the use of pen registers/trap and trace devices, including both the effectiveness of these tools and any improper or illegal uses. This section also requires the Inspectors General of the Intelligence Community to submit separate reports that also review these three provisions. The audits covering the years 2007-2009 must be completed by March 31, 2012. The audits for the years 2010-2011 must be completed by March, 31, 2013. These due dates ensure that Congress will have time to fully consider the findings of the audits prior to the December 31, 2013 sunsets in the bill.