Patriot Act Reauthorization
March 2006
A tenuous balance exists between efforts to safeguard our nation
from would-be terrorists and protecting the civil liberties
Americans have come to expect. One of the most important tasks
for Congress is determining how best to strike that balance
given the realities of policy-making in a post 9/11 world. When
the conference report reauthorizing the USA Patriot Act first
came out this past November, I joined with five other Senators
in a bipartisan effort to voice our view that the report language
did not go far enough to safeguard certain civil liberty protections.
While the conference report was a tremendous improvement over
the current law, it strayed from the Senate-passed bill in some
significant areas.
Our group identified four areas of concern where we sought
improvement: 1) the standard to obtain a Section 215 order for
production of business records should more closely follow Senate-passed
language requiring a statement of facts to show the records
sought pertain to foreign intelligence information, rather than
the presumed relevance standard of the conference report. We
also wanted to provide the recipient of a Section 215 order
with the ability to challenge the disclosure gag order; 2) provide
meaningful judicial review of a National Security Letter (NSL)
gag order; 3) reduce the sunset time frame for those provisions
not permanently authorized from seven years to four years; and
4) reduce the timeframe under a delayed notification order (sneak
and peek) for when the government must notify the target of
their search.
Following our initial objections, conferees agreed to reduce
the sunset time frame to four years. Still, this single change
did not address the remaining concerns we had. However, neither
were we willing to let the Patriot Act expire. Our law enforcement
and intelligence officials must have the necessary tools to
provide for our national security. After two short extensions
of the current law, we had a choice to make.
Continuing to insist on movement in all areas, in the face
of strong resistance from both the White House and House of
Representatives, was likely to only result in a long-term extension
of the 2001 Patriot Act language. That would have negated all
of the positive changes we had achieved up to that point. Instead,
through tough negotiations with the White House, we reached
an agreement that takes three important steps toward additional
civil liberty protections.
First, we were able to make explicit the right of a Section
215 recipient to challenge the disclosure gag order. For the
first time this express right is now available.
Second, an NSL recipient may now consult an attorney without
prior disclosure to the FBI of which attorney he will consult
with. NSL rules provide that if the recipient needs to disclose
the NSL request for documents to third parties in order to comply
with the request (ie: to obtain phone records from the phone
company), the recipient must tell the FBI to whom it will disclose
the NSL. There was concern this might allow the government to
play too great of a role in determining who a recipient retains
for legal counsel.
Third, we included a provision that exempts libraries operating
in their traditional function from National Security Letters.
A library should not be forced to turn over Internet usage information
about their patrons. Neither, however, should a library be a
safe haven for terrorists. Toward that end, our language allows
the FBI to use a National Security Letter to obtain electronic
communications transactional information from a library’s
Internet service provider, but not from the library itself,
unless the library is the Internet service provider.
Make no mistake, these provisions do not fully meet the concerns
our group expressed. However, this is not the last debate we
will have on the Patriot Act, nor is it the last piece of legislation
we will consider on the subject. In fact, I was pleased to join
with Senator Arlen Specter, the Chairman of the Senate Judiciary
Committee, in introducing separate legislation this past week
that will address each of the concerns we raised. We will continue
to push forward on these issues, but through the course of this
process, we have achieved significant improvements on the Patriot
Act.