09.22.09

Leahy, Cardin, Kaufman Introduce Benchmark Legislation To Reauthorize Expiring PATRIOT Act Provisions

WASHINGTON – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Tuesday introduced legislation to address expiring provisions of the USA PATRIOT Act, which are slated to sunset on December 31.  The Judiciary Committee is scheduled to hold a hearing on the expiring provisions of the Patriot Act on Wednesday, September 23.  Senator Ben Cardin (D-Md.), the chair of the Subcommittee on Terrorism and Homeland Security, and Senator Ted Kaufman (D-Del.), also a member of the Judiciary Committee, are cosponsors of the legislation.

The USA PATRIOT Act was first enacted in October 2001, and was reauthorized in 2006. Three provisions in the Act are set to expire this year, including the authorizations for roving wiretaps, the “lone wolf” measure, and Section 215 orders for tangible things, commonly referred to as the “library records” provision.  The proposed legislation extends the sunset of these three provisions, expands reporting requirements to allow Congress and the public to monitor the use of the authorities, and adds more exacting standards and court review for these information-gathering powers.

The USA PATRIOT Act Sunset Extension Act introduced Tuesday also includes a new, four-year sunset on National Security Letters (NSLs), and requires the Department of Justice’s Inspector General to conduct audits of the use of National Security Letters and Section 215 orders from 2007 through 2012.  Audit reports on the government’s use of NSLs required by the 2006 reauthorization of the Patriot Act concluded that the government was misusing National Security Letters.

“Security and liberty are both essential in our free society,” said Leahy.  “Today Senator Cardin, Senator Kaufman and I are introducing a bill that will extend the authorization of the three expiring provisions.  The bill also updates checks and balances by increasing judicial review of the use of government powers that capture information on U.S. citizens, and augments congressional oversight.  We propose increasing Government accountability through more transparent public reporting of the use of surveillance, and by requiring audits of how these vast authorities have been used since they were last reauthorized.”

“Congress’ top priority is to protect the American people. We must make sure that our law enforcement and intelligence professionals have the tools they need to prevent and disrupt terrorist attacks, while maintaining an appropriate balance between national security and protecting civil liberties. With these parallel goals in mind, I am pleased to join with Chairman Leahy as an original co-sponsor of this important legislation to renew three provisions of the Patriot Act that expire at the end of this year.  This legislation represents a good starting point for our debate, particularly with its enhanced oversight and protections, new sunset provision and additional changes in law for National Security Letters,” said Senator Cardin.

Kaufman said, “We must provide our law enforcement and intelligence officials the tools they need to keep America safe, while at the same time safeguarding Americans’ rights. I look forward to working with Chairman Leahy, my colleagues and the administration to make sure that we accomplish both of these critical objectives.”

Key provisions of the USA PATRIOT Act Sunset Extension Act of 2009 include:

  • SUNSETS:
    • Extension of the three expiring provisions of the USA PATRIOT Act to December 31, 2013.  The four-year period mirrors the sunsets in the original 2001 Patriot Act and the 2006 reauthorization.
    • Adds a new four-year sunset on National Security Letters.
  • PUBLIC REPORTING AND OVERSIGHT:
    • Requires public reporting on the number of requests for National Security Letters that shows greater specificity of the types of persons targeted.
    • Requires public reporting that breaks down requests for core types of surveillance, including electronic surveillance, physical searches, business records, and pen registrations.
    • Requires new Department of Justice Inspector General audits of the use of National Security Letters, orders for tangible things, and FISA pen register or trap and trace devices (“pen/trap”) covering the years 2007 through 2012.
  • HIGHER STANDARDS FOR SURVEILLANCE OF AMERICANS:
    • Modifies the standards for obtaining a Section 215 order for tangible things and a pen/trap under FISA to require that the records sought are relevant to an investigation and, at minimum, pertain to a suspected agent of a foreign power.
    • Modifies the current standard for obtaining a National Security Letter to require a statement of facts showing reasonable grounds to believe that the information sought is relevant to an authorized investigation.
  • INCREASED JUDICIAL REVIEW:
    • Modifies judicial review of nondisclosure orders associated with 215 orders for tangible things by repealing two provisions added in the 2006 reauthorization:  (a) the one-year waiting period before seeking judicial review, and (b) the conclusive presumption favoring nondisclosure.
    • Imposes a one-year limitation on nondisclosure orders on NSLs and shifts the burden to the government to defend such nondisclosure orders in court.
    • Requires court approval of minimization procedures for 215 orders for tangible things and for pen/traps.

The full text of the USA PATRIOT Act Sunset Extension Act is available above.

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Section-By-Section Summary of the USA PATRIOT ACT Sunset Extension Act

(For Background Purposes Only)

Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,

On The Introduction Of The USA PATRIOT Act Sunset Extension Act Of 2009

September 22, 2009

Security and liberty are both essential in our free society.  Benjamin Franklin wrote:  “Those who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”  I have been mindful of this since the devastating attacks of September 11, and each time we have considered the USA PATRIOT Act.  The American people of today and those of tomorrow – our children and grandchildren -- depend on us to do our best to ensure both security and the preservation of our essential liberties.

After September 11, the Government’s power to gather information about those suspected of, or connected to, potential terrorists increased.  Because such surveillance may, sometimes by mistake, sweep in U.S. citizens, we must vigilantly monitor these laws to ensure that they are implemented appropriately.  This calls for public, judicial and congressional oversight to make sure we maintain the proper respect for security and liberty.

After September 11, I introduced the USA PATRIOT Act (“Patriot Act”) to give the Government the tools needed to defend this country and aggressively pursue those who would do us harm.  Even in those dark days, I insisted on oversight.  Working with the then House Majority Leader, Republican Dick Armey, we included sunsets for some of the provisions of the bill that had the greatest potential to directly affect Americans.  

We debated the reauthorization of the Patriot Act for several months in 2005 and 2006.  I again fought to protect the civil liberties and constitutional rights of Americans.  Unfortunately, after a series of short extensions, the reauthorization of 2006 lacked sufficient constitutional protections over the vast authorities it granted to the Government.  I had worked to secure increased oversight and to include new sunsets in the bill.

With those sunsets expiring on December 31, 2009, we must once again consider the Patriot Act.  Three provisions of the Patriot Act are slated to expire at the end of this year, including the authorization for roving wiretaps, the “lone wolf” measure, and orders for tangible things, commonly referred to as the “library” provision.

In March, I sent Attorney General Holder a letter requesting the administration’s views on these expiring provisions.  I reiterated that request at a Senate Judiciary Committee oversight hearing in June.  I have recently received a letter from the Attorney General urging us to extend the expiring authorities.  I appreciate the President and the Attorney General’s emphasis on accountability and checks and balances, and their willingness to consider additional ideas.

Today I am introducing a bill with Senators Cardin and Kaufman that does just that.  It will extend the authorization of the three expiring provisions.  The bill also updates checks and balances by increasing judicial review of the use of Government powers that capture information on U.S. citizens, and augments congressional oversight.  We propose increasing Government accountability through more transparent public reporting of the use of surveillance, and by requiring audits of how these vast authorities have been used since they were last reauthorized.  In addition, we propose that, given their extensive use abuse and intrusiveness, we include a sunset for National Security Letters (NSLs).  I introduced a bill in 2006, after the most recent Patriot Act reauthorization, to impose a sunset on NSLs.  This sunset provision, combined with a comprehensive audit by the Inspector General, will help to hold the Federal Bureau of Investigation (FBI) accountable in its use of this authority.  

In developing this bill, I worked closely with Senators Feingold and Durbin to protect the rights and privacy of Americans, and to expand oversight.  Senators Feingold and Durbin have worked tirelessly over the years to protect the civil liberties of Americans, from the first debate over the Patriot Act in 2001, to the reauthorization in 2006, to the FISA Amendments Act enacted last year.  I am pleased that Senators Cardin, Kaufman and I have adopted some of the concepts they proposed in the SAFE Act of 2005, and that were included in the broader Patriot Act reauthorization bill they introduced last week, the JUSTICE Act.

I have long been concerned over the issuance and oversight of (NSLs).  National Security Letters are, in effect, a form of administrative subpoena.  They do not require approval by a court, grand jury, or prosecutor.  They are issued in secret, with recipients silenced, under penalty of law.  Yet NSLs allow the Government to collect sensitive information, such as personal financial records.  As Congress expanded the NSL authority in recent years, I raised concerns about how the FBI handles the information it collects on Americans.  I noted that, with no real limits imposed by Congress, the FBI could store this information electronically and use it for large-scale, data-mining operations.  We now know that the NSL authority was significantly misused.  In 2008 the Department of Justice Inspector General issued a report on the FBI’s use of NSLs revealing serious over-collection of information and abuse of the NSL authority.

We should reconsider the breadth of the NSL authority.  This bill would also impose more judicial oversight and higher standards on the issuance of NSLs.  It would require the FBI to include a statement of facts articulating why the information it is seeking is relevant to an authorized investigation.  

The bill also addresses the constitutional deficiency recently identified by the Second Circuit Court of Appeals in Doe v. Mukasey.  The Second Circuit found that the nondisclosure, or “gag orders,” issued under NSLs are a constitutional infringement.  I have long maintained that position.  The bill establishes a procedure whereby the recipient of an NSL has 21 days to notify the Government that it wishes to challenge the nondisclosure requirement.  The Government then has 21 additional days to apply for a court order to compel compliance with the nondisclosure requirement.  This scheme corrects the constitutional defects found by the Second Circuit.  The bill would shift the burden of defending the need for a gag order to the Government.  This bill also eliminates the NSL nondisclosure provision that allows the Government to ensure itself of victory by certifying that, in its view, disclosure “may” endanger national security or “may'” interfere with diplomatic relations. The bill further strengthens judicial review of nondisclosure or “gag orders” associated with NSLs by imposing a one-year limitation on such orders.  To protect on-going law enforcement investigations, it permits renewals of the nondisclosure orders in appropriate cases.

The power of the Government to collect records for tangible things under Section 215 of the original Patriot Act, commonly referred to as the “library records” provision, is another authority that I worked to reform during the last reauthorization. It is time to redefine the way we describe this authority to accurately reflect the broad scope of information it allows the government to collect. Section 215 allows the FISA court to secretly require any entity to produce any document or other tangible thing with a minimal standard of relevance and a presumption in favor of the Government’s showing of relevance. This bill correctly identifies Section 215 orders as orders for “tangible things” as opposed to only for “business records” as it is in current law.

This bill adopts the reasonable constitutional standard that I supported in 2006 for 215 orders. First, it would eliminate the presumption in favor of the Government’s assertion that the records it is seeking are relevant to its investigation.  This bill would require the Government to make a connection between the records or other things it seeks and a suspected terrorist or spy before it is able to obtain confidential records such as library, medical and telephone records.  Section 215 orders for tangible things permit the Government to collect an even broader scope of information than NSLs.  For that reason, it is critical that the Government show that the records it seeks are both relevant to an investigation and connected to at least a suspected terrorist or spy.

This bill would also establish more meaningful judicial review of Section 215 orders.  First, it repeals the requirement in current law that requires a recipient of a Section 215 nondisclosure order to wait for a full year before challenging that gag order. There is no justification for this mandatory waiting period for judicial review, and this bill eliminates it.  It also repeals a provision added to the law in 2006 stating that a conclusive presumption in favor of the Government shall apply where a high level official certifies that disclosure of the order for tangible things would endanger national security or interfere with diplomatic relations.  These restraints on meaningful judicial review are unfair, unjustified, and completely unacceptable. I fought hard to keep these two provisions out of the 2006 reauthorization, but the Republican majority at that time insisted they be included.   

This bill will strengthen court oversight of Section 215 orders by requiring court oversight of minimization procedures when information concerning a U.S. person is acquired, retained, or disseminated.  Requiring FISA Court approval of minimization procedures would simply bring Section 215 orders in line with other FISA authorities -- such as wiretaps, physical searches, and pen register and trap and trace devices -- that already require FISA court approval of minimization procedures.  This is another common sense modification to the law that was drafted in consultation with Senators Feingold and Durbin.  If we are to allow personal information to be collected in secret, the court must be more involved in making sure the authorities are used responsibly and that Americans’ information and personal privacy are protected.

Finally, this bill addresses concerns over the use of pen register or trap and trace devices (“pen/trap”).  The bill raises the standard for pen/trap in the same manner as it raises the standard for Section 215 orders.  The Government would be required to show that the information it seeks is both relevant to an investigation and connected to a suspected terrorist or spy. This section also requires court review of minimization procedures, which are not required under current law, and adds an Inspector General audit of the use of pen/trap that is modeled on the audits of Section 215 orders and NSLs.  

I look forward to working with the members of the Judiciary Committee, the Senate, the House and with the administration as this bill moves forward, and I welcome the views of others.

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The USA PATRIOT Act Sunset Extension Act of 2009
Section-By-Section

For Background Purposes Only.

Sec. 1.  Short Title.

The Short title of the bill is the “USA PATRIOT Act Sunset Extension Act of 2009.”

Sec. 2. Sunsets.

This section extends the sunsets on the provisions for “lone wolf,” roving wiretaps and orders for tangible things from December 31, 2009 to December 31, 2013.  This section establishes a sunset of December 31, 2013, on the use of National Security Letters (NSLs).   This section also makes conforming amendments to FISA and other applicable laws consistent with the sunsets.

Sec. 3.  Factual Basis for and Issuance of Orders for Access to Tangible Things. 

Modifies the title of Section 501 of the Foreign Intelligence Surveillance Act of 1978 from “Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations” to “Access to Tangible Things for Foreign Intelligence and International Terrorism Investigations”, in order to reflect the true scope of orders produced under Section 215 of the Patriot Act, which allows the FBI to apply for an order requiring the production of “any tangible thing.” Modifies the standard for obtaining a court order for tangible things under FISA.  Current law requires the government to submit a statement of facts showing reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.  However, current law states that the tangible things sought are presumptively relevant if the government shows that they pertain to (a) a foreign power or an agent of a foreign power, (b) the activities of a suspected agent of a foreign power who is the subject of such an authorized investigation, or (c) an individual in contact with, or known to, an agent of a foreign power who is the subject of such authorized investigation.  This section removes the presumption of relevance described above.  It requires the government show relevance to an authorized investigation and requires the government to show that the tangible things sought (a) pertain to a foreign power or an agent of a foreign power, (b) are relevant to the activities of a suspected agent of a foreign power who is the subject of such an authorized investigation, or (c) pertain to an individual in contact with, or known to, a suspected agent of a foreign power who is subject of such authorized investigation.  This section also requires court review of minimization procedures.

Sec. 4.  Factual Basis For and Issuance of Orders for Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes.

Under current law, in order to obtain a FISA pen/trap, the government must certify that the information sought is merely foreign intelligence information or is relevant to an investigation to protect against terrorism.  This is a low standard that a court has little power to review. The bill modifies the standard for obtaining a pen/trap to require the government show relevance to an authorized investigation and requires the government to show that the information sought (a) pertains to a foreign power or an agent of a foreign power, (b) is relevant to the activities of a suspected agent of a foreign power who is the subject of such an authorized investigation, or (c) pertains to an individual in contact with, or known to, a suspected agent of a foreign power who is subject of such authorized investigation.  This section also requires court review of minimization procedures which are not required under current law.

Sec. 5.  Limitations on Disclosure of National Security Letters.

This section authorizes the government to prohibit disclosure of the receipt of an NSL (there are four different statutes that authorize NSLs) where a high level official certifies that disclosure may result in danger to the national security, interference with an investigation, or danger to the life or safety of a person.  Such certification shall last for up to a year, and may be renewed upon a recertification.  This section gives the recipient of an NSL the right to challenge the nondisclosure requirement within 21 days of receipt of the NSL.  The government may then initiate court proceedings to order compliance with the nondisclosure requirement.  

Sec. 6.  Judicial Review of FISA Orders and NSL nondisclosure orders.

FISA Orders for Tangible Things:  Subsection (a) allows the recipient of a section 215 order for tangible things to challenge the order itself and any nondisclosure order associated with it.  Current law requires a recipient to wait a year before challenging a nondisclosure order.  This section repeals that one year mandate before a recipient of an order for tangible things can challenge such a nondisclosure order in court.  It also repeals a provision added to the law in 2006 stating that a conclusive presumption in favor of the government shall apply where a high level official certifies that disclosure of the order for tangible things would endanger national security or interfere with diplomatic relations.

Judicial Review of NSL nondisclosure orders:  Subsection (b) imposes a one-year limitation on nondisclosure orders on NSLs, a period that may be extended.  The subsection allows the recipient of an NSL with a nondisclosure order to notify the government within 21 days that it wishes to challenge the nondisclosure order. The government then has 21 days to apply for a court order to compel compliance with the nondisclosure order.  This scheme corrects the constitutional defects in the nondisclosure orders on NSL as found by the Second Circuit Court of Appeals in Doe v. Mukasey, 07-4943-cv (December 15, 2008), and adopts that court’s suggestions for a constitutionally sound process.  Id at pp. 39-40.  This subsection is modeled after the Second Circuit’s framework for imposing reasonable time limits by allowing the recipient 21 days to challenge the nondisclosure order and giving the government an additional 21 days to initiate court review to compel nondisclosure.

Minimization.  Subsection (c) strengthens minimization procedures by modifying the scope of those  procedures to include the acquisition of information about U.S. persons, analogous to the minimization procedures for other FISA authorities.  This subsection would also strengthen court oversight of such procedures, when, under an order for tangible things, information concerning a U.S. person is acquired, retained, or disseminated by requiring FISA court approval of minimization procedures, similar to the Court approval required for other FISA authorities such as wiretaps, physical searches, and pen register and trap and trace devices.

Sec. 7.  Certification for Access to Telephone Toll And Transactional Records.

This section modifies the current standard for obtaining an NSL.  Current law requires only that an official certify that the information wanted is relevant, or sought, for an authorized investigation to protect against international terrorism or clandestine intelligence activities, or for a law enforcement investigation, counterintelligence inquiry, or security determination.  This section adds a requirement for a statement of facts showing reasonable grounds to believe that the information sought is at least relevant to such an authorized investigation.

Sec. 8.  Public Reporting on National Security Letters.

This section requires annual public reporting on the number of requests for NSLs that is also broken down to show greater specificity of the types of persons targeted (e.g., U.S. persons v. non-U.S. persons).

Sec. 9.  Public Reporting on the Foreign Intelligence Surveillance Act.

This section requires annual public reporting of aggregate numbers of requests for surveillance that also includes a breakdown of requests for (a) electronic surveillance, (b) physical searches, (c) orders for tangible things (Section 215 orders), and (d) pen registers.  Current law requires only public reporting of the above categories in the aggregate.

Sec. 10.  Audits.

This section requires the DOJ Office of Inspector General to conduct audits of the use of three surveillance tools:  1) orders for tangible things under Section 215 of the 2001 Patriot Act, or Section 501 of FISA; pen registers and trap and trace devices under Section 402 of FISA; and 3) the use of NSLs. The audits will cover the years 2007 through 2012.  These audits will be completed on the same model as those required for Section 215 orders and NSLs under the 2006 Patriot Act Reauthorization bill.  The scope of such audits includes a comprehensive analysis of the effectiveness and use of the investigative authorities provided to the government, including any improper or illegal use of such authorities.

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Press Contact

David Carle: 202-224-3693

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