Patriot Act may be renewed without reforms

By Declan McCullagh

Story last modified Wed Dec 07 16:12:00 PST 2005

A frenzy of last-minute negotiations over the Patriot Act, conducted behind
closed doors as a Dec. 31 expiration date nears, has yielded a four-year
renewal of the law and no substantial reforms.

Sen. Arlen Specter, the Pennsylvania Republican who has been a point person
during this year's debate over the fate of the complex and controversial
law, said Wednesday that he and his counterparts in the House of
Representatives have agreed to a deal that could pave the way for
reauthorization of the Patriot Act by next week.

After reaching an impasse with House Republicans who held out for a longer
seven-year renewal, Specter said he asked President Bush to intervene. "The
vice president helped out a little yesterday and after a lot of haggling, I
signed the conference report at 9:00 p.m.," Specter said in a statement sent
to CNET "They brought it to my house."

But a band of six Democratic and Republican senators--who lodged strong
objections to the draft conference report prepared last month--is likely to
block a vote unless their concerns about privacy and overly broad
surveillance are addressed. Sen. Russ Feingold, a Wisconsin Democrat and
member of the group, said through a spokesman on Wednesday that he had not
reviewed the final text.

Of the 16 portions of the massive law that are set to expire, five deal with
electronic surveillance and computer crime. Those permit secret court orders
that the FBI can use to obtain business records; authorize more information
sharing between Internet providers and police; and list computer hacking as
an offense granting increased eavesdropping authority.

One important but unanswered question is how much support the group of six
senators can muster among their colleagues. At a press conference last
month, the group called for reforming portions of the Patriot Act that deal
with library and other business record acquisitions, secret "National
Security Letters" that have been used against Internet service providers,
and delayed search warrants that permit police to secretly enter a home and
notify the person weeks or months later.

Specter's office did not make the text of the final bill available. But
according to interviews with staffers and lobbyists, not one of those three
changes has been made.

Tim Edgar, a legislative counsel for the American Civil Liberties Union,
said Specter's announcement was "designed to put a lot of pressure on the
Senate to go along with an extremely flawed conference report. We'll see if
they bite."

The group of six includes Democrats Richard Durbin of Illinois and Kenneth
Salazar of Colorado; and Republicans Lisa Murkowski of Alaska; Larry Craig
of Idaho; and John Sununu of New Hampshire. They backed a Patriot Act reform
plan, called the Safe Act, that is still stuck in committee.

One person who likely will wield strong influence over whether Democratic
senators side with the Bush administration or the group of six is Vermont
Sen. Patrick Leahy, who spent Wednesday conferring with members of his
party. "I'm anxiously awaiting an answer," Specter said. (Leahy's office
said late in the day that no decision had been made.)

Bush has repeatedly called for a full renewal of the Patriot Act, regularly
lacing speeches with phrases like: "Our law enforcement needs this vital
legislation to protect our citizens." The White House is expected to
increase the pressure on Republican senators not to defect to the group of

As a way to twist arms, House Republicans are expected to schedule a vote
before Christmas, which would let them and the Bush administration
characterize the Senate as obstructionist. A spokesman for the House
Judiciary Committee said a floor vote had been anticipated for Thursday but
has been delayed: "It won't be on the floor tomorrow. That was our hope
earlier today, but it's not going to happen."

History of controversy
>From the time a preliminary version was introduced in the Senate days after
the Sept. 11, 2001 terrorist attacks, the Patriot Act has been dogged by

When the final vote was held the following month, members of Congress were
required to vote on the bill without a lot of time to read it. The measure
"has been debated in the most undemocratic way possible, and it is not
worthy of this institution," Rep. Barney Frank, D-Mass., said at the time.
Rep. Ron Paul, R-Texas, added later: "Almost all significant legislation
since 9/11 has been rushed through in a tone of urgency with reference to
the tragedy."

Even though the Patriot Act was approved by overwhelming majorities in both
chambers of Congress, some legislators voted for it with the understanding
that key portions would be revisited in 2005. Early this year, the Senate
and the House of Representatives began a series of hearings on the law. One
portion that has drawn scrutiny is section 215, which permits secret court
orders to be used to obtain records or "tangible items" from any person or
organization if the FBI claims a link to terrorism. The recipient of the
secret order is gagged, and disclosing its existence is punished by a prison
term. Section 215 is set to expire on Dec. 31.

Another is the portion of the Patriot Act that requires Internet service
providers and any other type of communication provider--including telephone
companies--to comply with secret "National Security Letters" from the FBI.
Those letters can ask for information about subscribers--including home
addresses, what telephone calls were made, e-mail subject lines and logs of
what Web sites were visited.

Such letters are not new: Before the Patriot Act was enacted, they could be
used in investigations of suspected terrorists and spies. But after the
change to the law, the FBI needed only to say that a letter may be
"relevant" to a terrorist-related investigation. No court approval is

The 2nd Circuit Court of Appeals heard arguments on Nov. 2 about the
constitutionality of National Security Letters--which, under current law,
don't even permit the recipient to consult an attorney. That portion of the
Patriot Act is not scheduled to expire.

Kevin Bankston, a staff attorney at the Electronic Frontier Foundation, said
the current debate over the Patriot Act is important but ultimately limited
because even the proposed modifications are modest. "To some extent it feels
like rearranging the deck chairs on the Titanic," Bankston said. "At the
end, it's still going to be the Patriot Act. It's going to be a broad
enhancement of police power, of law enforcement and investigative powers."

CNET's Anne Broache contributed to this report. 

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