Background: Sen. Arlen Specter is urging his colleagues to approve the
so-called "conference report," which is a substantial rewrite of the
Patriot Act. It expands surveillance power but increases oversight of
how the law's being used. It also has plenty of unrelated Drug War
silliness in it. More history is here:
http://www.politechbot.com/2005/12/08/patriot-act-update/
Text of conference report:
http://news.com.com/pdf/ne/2005/Final_Conference_Report.pdf
-Declan
---
December 9, 2005
Dear Colleague,
Upon the Senate’s return during the week of December
12th, we will be voting on the conference report reauthorizing the USA
PATRIOT Act. I write to seek your support and to explain how the
provisions of the conference report retain the most important civil
liberties and privacy protections from the bill that passed the Senate
and include additional safeguards that emerged from the negotiations
between the House and Senate conferees. The conference report retains
the tools essential to law enforcement in fighting international
terrorism while significantly expanding protections for civil rights
from the Act currently in force.
Although the conference report contains many valuable
provisions, such as important protections for the nation’s seaports and
mass transportation systems, as well as new penalties to combat the
growing problem with methamphetamine abuse, I would like to focus on
several of the more contentious provisions of the PATRIOT Act itself.
Section 215: Business Records
The most controversial provision of the PATRIOT Act has been Section
215, the so-called “library records” provision. The conference report
adds several safeguards to prevent abuse of Section 215 that neither the
Senate bill nor the House bill contained. First, the conference report
requires a comprehensive audit by the Justice Department’s independent
Inspector General of law enforcement use of Section 215. Second, the
conference report will permit, for the first time, public reporting of
the total number of 215 orders sought and granted. A third safeguard is
the conference report’s provision that Section 215 orders may not be
used merely for threat assessments. This requirement ensures that
Section 215 will be used only during those authorized investigations
that have progressed somewhat beyond the initial stages. A fourth new
safeguard is that every order under Section 215 will require
minimization procedures that curtail the retention and dissemination of
information concerning United States citizens.
The conference report also retains key provisions from the Senate bill:
(1) the requirement of a statement of facts to accompany an application
for an order under Section 215; (2) the express vesting of discretion in
the FISA judge to review, and to reject, the FBI’s application for a 215
order; (3) the express right of recipients to consult legal counsel and
seek judicial review of 215 orders; (4) the requirement of approval by
the FBI Director, Deputy Director, or Executive Assistant Director for
National Security before the government can seek library records,
medical records, or other sensitive documents; (5) the enhanced
reporting to Congress on the use of Section 215, including specific
information concerning requests for the most sensitive documents; (6)
the requirement that 215 orders can compel the production only of those
tangible things that could be obtained under a grand jury subpoena or
other orders issued by federal courts; and (7) the inclusion of a
four-year sunset provision to guarantee that Congress will revisit
Section 215 at a later time.
The major difference between the Senate bill and the conference report
with respect to Section 215 is that the conference report authorizes the
FISA court in certain narrow circumstances to issue a Section 215 order
upon a showing of relevance to an already authorized terrorism
investigation without a demonstration that the person’s records being
requested is a known terrorist or acting on behalf of a foreign power.
The relevance standard will apply only in extraordinary circumstances
because the conference report is set up so as to channel all
applications for orders under Section 215 into the three categories the
Senate established in its reauthorization bill. By establishing three
circumstances to demonstrate relevance when the government shows a
connection to a suspected terrorist or spy, the bill ensures that
requests falling outside the three categories will be the exception and
not the rule. Thus, the Senate bill’s three-part test remains a
substantial safeguard in the conference report.
Law enforcement will face an uphill battle in any effort to obtain a 215
order that does not fall into one of the three categories and thereby
provides an incentive for the FBI to use the tool only when it can show
a connection to a suspected terrorist or spy. This provision was deemed
necessary because the Department of Justice was able, in a classified
setting, to demonstrate that circumstances may exist in which an
individual may not be known to a foreign power or be a recognized
terrorist but may nevertheless be crucial to a terrorism investigation.
National Security Letters
The conference report also makes important changes to
the laws governing National Security Letters (NSLs), which the FBI has
used for several decades to request communications records and financial
information from third parties in intelligence and terrorism cases.
First and foremost, the conference report makes explicit the right of
NSL recipients to ask a court to set aside the requirement to turn over
information as well as the requirement to keep the request for
information confidential. This is in stark contrast to current law,
which affords no such explicit Second, in a protection analogous to one
provided for Section 215, the conference report requires the Justice
Department’s Inspector General to audit the FBI’s use of NSLs. Finally,
the conference report significantly enhances reporting to Congress and
requires an annual public report on the FBI’s use of NSLs. These
reporting requirements enable both Congress, and the public, to ensure
that NSLs are not being abused.
Section 213: Delayed-Notice Warrants
The conference report has retained the important
protections from the Senate bill’s amendments to Section 213 of the
PATRIOT Act, which authorizes warrants allowing the government to wait a
number of days after the search before notifying the target. The
conference report requires that a target be notified within 30 days of
the search, unless the facts of the case justify a later date. Although
this period is longer than the 7-day time limit from the Senate bill, it
is considerably shorter than the 180 days permitted in the House bill
and is a significant improvement over the original PATRIOT Act, which
imposes no limits on the period of delay beyond what is “reasonable.”
And, like the Senate bill, the conference report permits extensions of
the delay period only upon an updated showing of the need for further
delay. As in the Senate bill, these extensions are limited to 90 days,
unless the facts justify a longer delay. Finally, and again like the
Senate bill, the conference report requires public reporting of all
delayed-notice warrants.
Section 206: Multipoint Wiretap Orders
Many, including myself, have discussed the need for
changes to Section 206 of the PATRIOT Act, which authorizes multipoint
or “roving” wiretap orders. I think the conference report successfully
meets that need. The ability of the Justice Department to obtain
multipoint wiretaps is in part a result of changes in communications
technology that have made the use of cell phones ubiquitous. Terrorists
have taken advantage of those changes to cover their tracks by using
multiple phones.
Borrowing elements from both the House and Senate bills,
the conference report limits the use of roving wiretaps to those cases
in which the FBI includes in its application a “specific” description of
the target and “specific facts in the application” that show the
target’s actions may thwart surveillance efforts. Further, the
conference report adopts the Senate bill’s requirement that the FBI
notify the court within 10 days of moving its surveillance of a target
from one telephone number to another. As an additional safeguard, the
conference report requires that the FBI report periodically to Congress
on its use of the roving wiretap authority. Finally, like the Senate
bill, the conference report includes a four-year sunset for Section 206
so that Congress will revisit this provision in the near future. I
believe these important modifications will go far in preventing abuse of
this provision.
***
Much of the criticism has really involved complaints
about the current PATRIOT Act without understanding the improvements in
the conference report. Numerous hearings have determined that the
PATRIOT Act has not been subject to abuse. But in order to promote
public confidence, the conference report includes significant changes
that will enhance oversight by the Congress, the judiciary and the
public at large. The conference report represents a balanced compromise
designed to maintain our ability to investigate—and hopefully
preempt—terrorist attacks, while ensuring that the rights enshrined in
our Constitution are not violated.
Very truly yours,
Arlen Specter
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