Bipartisan Bill Would Curb Patriot Act Powers
Wyden, Murkowski offer legislation to protect privacy, civil liberties

August 1, 2003

Washington, DC – U.S. Senator Ron Wyden (D-Ore.) joined Sen. Lisa Murkowski (R-Alaska) today to introduce the bipartisan Protecting the Rights of Individuals Act, which will define and narrow the new powers given to government agencies by the USA Patriot Act, passed by the 107th Congress in the immediate aftermath of the September 11 attacks.

“Right now, the Executive Branch has greater powers to pursue potential enemies to the U.S. than at any time since World War II – powers granted in the days immediately following a terrible attack on this country’s soil,” said Wyden. “With almost two years’ perspective on the September 11 tragedy, I believe that Congress has an opportunity and a duty to strike a more proper balance between security and civil liberties.”

The Murkowski-Wyden bill regulates the ability of law enforcement to delay notification of a search warrant – so called “sneak-and-peek” activities.” Prior to the USA Patriot Act, government had to simultaneously give notice of a search warrant when searching for physical evidence. The Patriot Act allowed for delays in notification. The Murkowski-Wyden legislation would delay notification only in cases where terrorism is suspected. It narrows the circumstances when notification can be delayed, limits the delay to seven days with some possible extensions, and it requires public reports on the number of times when delayed notification is sought and used.

The legislation modifies the definition of domestic terrorism so it does not include all violations of federal or state criminal laws. It also provides courts greater discretion to evaluate what types of evidence can be reasonably sought. The Act will permit intelligence agencies to seek warrants for a broad range of evidence, but will require a showing of “reasonable cause” that the individual to whom the records pertain is a foreign power or an agent of a foreign power in order to gain search warrants. It also raises the standard for the government to look at medical records, library records or records involving the purchase or rental of books, videos and music, requiring the government to show probable cause.

The bill also requires a court order approving electronic surveillance – a wiretap – to specify either the identity of the target or the location of the facility where the surveillance will occur. Under the existing Patriot act, a court order can be issued without identifying either a specific target or location to be searched.

Currently, law enforcement can obtain a court order authorizing certain types of surveillance simply by certifying that the information likely to be obtained is relevant to an authorized investigation. The Murkowski-Wyden legislation requires the government to show specific facts that indicate that a crime has been, is being, or will be committed and provides the courts with greater judicial review authority.

The bill makes a host of other clarifications: it also defines the types of Internet usage and email information that can be obtained. It does not permit the collection of information contained in the subject line of an email or more detailed internet addresses. It requires greater public reporting on activities conducted under the Foreign Intelligence Surveillance Act (FISA). It allows the government to conduct “data-mining” activities only when Congress specifically authorizes them. It applies discovery procedures already in place under the Classified Information Procedures Act (CIPA) to other court proceedings that will use evidence collected under FISA.

The legislation restores the former requirement that the “primary purpose” for electronic surveillance and physical searches under the Foreign Intelligence Surveillance Act is to obtain foreign intelligence. The Patriot Act loosened the requirement to only require that “a significant purpose” be required before the surveillance was allowed.

The Murkowski-Wyden bill also provides for greater judicial review of government requests for educational records. Currently, the government can obtain education records by simply certifying their need. The bill would require the government to set forth specific facts indicating the education records are relevant to an investigation.

The bill has been referred to the Senate Judiciary Committee for further consideration.

 

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