USA PATRIOT Act Reauthorization Talking Points

Connection between records sought and a suspected terrorist

Current law: The USA PATRIOT Act lowered the standards whereby the FBI can obtain private financial, medical, telephone, or Internet records. The current standard for seeking records under the more intrusive PATRIOT Act provisions, such as section 505 (National Security Letters), section 215 (business records), and section 214 (FISA pen registers and trap and trace devices) requires only that the government claim that the information sought is relevant to an investigation. Furthermore, if the records sought belong to a U.S. person, the agent must only certify that the reason for the search is not solely on first amendment grounds. “Fishing expeditions” that are largely motivated by a person’s first amendment-protected activities should not be permitted at all.

Minimum requirement: A government agent should be required to convince a judge that there are “specific and articulable facts” connecting the sensitive medical, business, financial, library, or Internet records to a suspected terrorist, spy or other foreign agent before the records may be obtained. Furthermore, searches of records on the basis of first amendment activities should not be authorized at all.

Shortcomings of draft conference report: The draft conference report does not raise the relevancy standard from current law.

Sunsets and accountability

Current law: Sixteen controversial PATRIOT Act provisions and a post-PATRIOT Act provision allowing surveillance of individuals with no known ties to a terrorist organization (known as the “lone wolf” provision) expire on December 31, 2005, unless Congress reauthorizes them. Section 505 (National Security Letters) does not expire.

Minimum requirement: Without sunsets, Congress would not have held hearings to review the expiring provisions this year and to hold itself and the Justice Department accountable for upholding our civil liberties. Even with the sunsets in place, the Justice Department has avoided fulfilling its minimal responsibilities for reporting to Congress how it has used the new provisions. When Attorney General Gonzales and FBI Director Mueller were asked if they knew of any FBI abuses, they answered that they did not. EPIC’s request for records under the Freedom of Information Act (FOIA) recently revealed that there have been many FBI abuses. Congress should terminate powers that are subject to abuse or strengthen checks and reauthorize them for a brief period of no longer than four years.

Shortcomings of draft conference report: Places seven-year sunsets on controversial sections regarding roving wiretaps (section 206), business and library records (section 215), and “lone wolf.” Seven-year sunsets would mean that, cumulatively, we would have to wait 11 years from the passage of the PATRIOT Act until these powers are substantively reviewed. This extension ignores previous, unanimous House and Senate votes for four-year sunsets and means that the next administration will not be obliged to review or address concerns about the application of the PATRIOT Act.

National Security Letters (USA PATRIOT Act section 505)

Current law: The existing powers permit the FBI to conduct secret, warrantless searches of private records that it considers relevant to a national security investigation—such as libraries, medical professionals, financial institutions, and Internet service providers. The FBI’s investigations of antiwar demonstrators show that their definition of “national security” differs from most people’s definition. The Patriot Act loosened restrictions on the FBI’s use of NSLs by allowing their use to investigate U.S. persons as well as foreign nationals, aliens, and suspected terrorists. The removal of the restriction has resulted in a hundredfold increase in the FBI’s use of the power, to more than 30,000 times per year (more than 120,000 since the Patriot Act was passed). Each request may be for hundreds or thousands of records. For example, one NSL to a Connecticut library was for the records of every person who had used a library computer.

Minimum requirement: An executive agency should not be permitted to write its own information requests, without oversight by the judicial or legislative branches. The unchecked power that NSL authority conveys to the FBI is borne out by the fact that its use dwarfs that of section 215, which requires submitting a form to the FISA court. Furthermore, the agency should destroy records shown to have no ties to terrorism. Instead, it has been placing all records it obtains in a shared database.

Shortcomings of draft conference report: The conferees not only failed to tighten the standards for using NSLs, but expanded the power by imposing criminal penalties on any business that does not comply with an NSL. Furthermore, the report does not provide a meaningful mechanism for challenging NSLs in court, and does not ensure that the information gathered by these letters is destroyed if it is unrelated to the investigation for which it was sought.

Gag orders and the right to challenge

Current law: Sections 215 and 505 require third-party holders of information, such as businesses, health care providers, Internet providers, and libraries, to provide the information to the FBI and to not divulge the request to anyone except an attorney or the person within the organization who must gather and provide the information. The business or library has no explicit right to challenge the request. Furthermore, the gag order effectively ensures that no party whose records were turned over will ever find out, even after the FBI has determined there is no link between the records and terrorism.

Minimum requirement: Gag orders have a purpose of preventing the target of an important investigation from finding out. When an investigation ends without uncovering evidence related to terrorism or a crime, the only reason for forcing the source to remain silent would be to support an FBI cover-up. Were it not for the protection that permanent gag orders provide, then the FBI would be more inclined to use the least-intrusive means for getting the information it seeks, and to avoid fishing expeditions and searches fueled by the subjects’ first amendment activities. When the investigation is completed, if no evidence is found linking the records with any wrongdoing, then the records should be destroyed and the gag order lifted.

Businesses and libraries’ right to challenge orders for records and gag orders cannot be illusory: A judge is needed to decide whether the government’s need for the information is real. The government’s claim of “national security” should not be accepted without review.

Shortcomings of draft conference report: Businesses receiving requests for records would be allowed to contact an attorney, but would have only limited rights to challenge orders for records in court. Likewise, a recipient would technically have the right to challenge a gag order, but the court would treat the government’s assertion of national security, diplomatic relations, or an ongoing criminal investigation, as conclusive. The subject of the investigation and the hundreds of thousands of people whose records are turned over in a fishing expedition and permanently stored in a shared database would never find out, because the gag order would remain permanent.