{"id":208,"date":"2009-10-11T06:29:48","date_gmt":"2009-10-11T13:29:48","guid":{"rendered":"http:\/\/www.harvardnsj.com\/?p=208"},"modified":"2009-10-11T06:29:48","modified_gmt":"2009-10-11T13:29:48","slug":"patriot-act-reauthorization-passes-senate-judiciary-committee","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2009\/10\/patriot-act-reauthorization-passes-senate-judiciary-committee\/","title":{"rendered":"PATRIOT Act Reauthorization Passes Senate Judiciary Committee"},"content":{"rendered":"

On Thursday, a divided Senate Judiciary Committee approved<\/a> a bill to renew three key provisions of the USA PATRIOT Act that were set to expire at year’s end.\u00a0 By a tally of 11-8<\/a>, the SJC voted to extend until 2013 the authorities of the federal government to obtain individual business and financial records that may be relevant to a counterterrorism or counterintelligence investigation; to conduct “roving wiretaps” that apply to any means of communication used by suspects rather than targeting specific media such as a single cell phone number; and to investigate “lone wolf” terrorists who may act independently of a foreign terrorist organization or other foreign power.<\/p>\n

The new bill contains a few modifications<\/a> that five dissenting Republicans on the committee decried as measures that would hamstring federal investigators pursuing terrorists.\u00a0 Three dissenting Democrats argued the new protections do not go far enough in protecting civil liberties.<\/p>\n

Briefly, the issues up for debate on the expiring provisions are as follows:<\/p>\n

1) Library Records<\/span>: Section 215 of the PATRIOT Act, the so-called “library records” provision, authorizes the FBI to obtain a court order requiring any individual to produce any “tangible thing” that may be relevant to an investigation of a U.S. person to protect against international terrorism or clandestine intelligence activities, including information such as business and personal financial records.\u00a0 The FBI may also order such information produced when it concerns non-U.S. persons for the purpose of obtaining foreign intelligence information, without showing any specific ties to terrorism.\u00a0 Section 215 also contains a “gag order” provision that bars persons ordered to furnish information under this provision from disclosing that fact to others.<\/p>\n

2) Roving Wiretaps<\/span>: 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.\u00a0 This affords investigators the flexibility to, for example, tap multiple cell phones and email addresses without having to return to the FISA court to obtain a new wiretap order for each facility to be monitored.\u00a0 The law as it now stands does not require the government to specify the targeted individual’s actual name or any specific communications device.<\/p>\n

3) “Lone Wolf” Provision<\/span>: Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004 is subject to the Dec. 31, 2009 sunset date and is being considered in conjunction with the aforementioned PATRIOT Act provisions.\u00a0 This “lone wolf” law 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.\u00a0 The government need not demonstrate or suspect that these targets of surveillance are associated with a foreign terrorist organization.<\/p>\n

National Security Letters<\/span><\/p>\n

The three foregoing provisions of the Act are set to expire at year’s end, but their reauthorization has also brought to the fore a fourth element of the Act: the government’s expanded power to issue national security letters (NSLs).\u00a0 These are demand letters issued to private parties to obtain personal information such as financial records, credit reports, telephone and email communications data, and Internet search data.\u00a0 Section 505 of the PATRIOT Act increased the number of officials who can authorize NSLs, and it reduced the evidentiary standard required for issuance.\u00a0 The FBI need only certify internally that the information sought is “relevant” to an authorized counterterrorism or counterintelligence investigation.\u00a0 NSLs also may contain gag order provisions, and their issuance is currently not subject to judicial oversight.<\/p>\n

Several of the new changes agreed upon by the SJC would tighten standards for using NSLs.\u00a0 One amendment would require the government to notify NSL recipients when the gag order is no longer needed.\u00a0 Another change would provide that the government must obtain judicial approval for an order not to disclose an NSL.\u00a0 Finally, under the SJC bill, the attorney general would be given six months to establish procedures governing the acquisition, destruction, and confidentiality exercised by the FBI with respect to records received in response to an NSL.<\/p>\n

Some have noted that the Obama administration has not publicly supported the addition of any new privacy protections in the PATRIOT Act reauthorization.\u00a0 Critics argue that this represents a shift from the policy position Obama previously staked out as a senator.\u00a0 (See here<\/a> and here<\/a>.)<\/p>\n

The bill has been set for debate by the full Senate.\u00a0 NSJ will be tracking that debate and publishing an analysis of the new legislation and how it differs from the version currently on the books.<\/p>\n","protected":false},"excerpt":{"rendered":"

On Thursday, a divided Senate Judiciary Committee approved a bill to renew three key provisions of the USA PATRIOT Act that were set to expire at year’s end.\u00a0 By a tally of 11-8, the SJC voted to extend until 2013 the authorities of the federal government to obtain individual business and financial records that may be relevant to a counterterrorism or counterintelligence investigation; to conduct “roving wiretaps” that apply to any means of communication used by suspects rather than targeting specific media such as a single cell phone number; and to investigate “lone wolf” terrorists who may act independently of […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-208","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZtUX-3m","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/208","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/comments?post=208"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/208\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/media?parent=208"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/categories?post=208"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/tags?post=208"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}