By Greg Nojeim; Senior Counsel and Director, Project on Freedom, Security & Technology; the Center for Democracy & Technology
Legislation to amend the USA PATRIOT Act, and to reauthorize three expiring provisions of intelligence law that relate to it, was introduced in the Senate in the last few days. Both Senator Leahy's USA Patriot Act Sunset Extension Act, S. 1692 and Senator Feingold's JUSTICE Act, S. 1686, make improvements to protect civil liberties, with the JUSTICE Act taking a much bolder approach. It is easy to get lost in the tall grass of the Patriot Act, but here is what to keep in mind: reform of National Security Letter (NSL) authority should take center stage, even though the provisions do not sunset, because serious NSL abuses of have been documented by the DOJ's own Inspector General.
Unless Congress acts by December 31, Patriot Act Section 206 (roving intelligence wiretaps), Patriot Act Section 215 (access to business records) and Section 6001 of the Intelligence Reform and Terrorism Prevention Act (wiretapping of "lone wolf" terrorists) will all expire. Both Senate bills address these expiring provisions, and both, appropriately, go beyond the sunsetting provisions by proposing reform of other surveillance authorities, including to NSLs.
Why is it appropriate for Congress to take up Patriot Act provisions that don't even expire? Because that's where the abuses are taking place. The Patriot Act provisions that expire need some improvements, but they are seldom used, and when they are used, they are used with judicial authorization, so there is at least that crucial check already.
Take lone wolf surveillance, for example.This authority authorizes the FBI to secure a court order under the Foreign Intelligence Surveillance Act to wiretap non-citizens in the U.S. (other than green card holders) even if they are not suspected of being members of a terrorist group. The provision marked an important departure from the theory underpinning intelligence surveillance: for the first time, it said that the government would not have to prove that the person to be surveilled was an agent of a foreign power, such as a foreign terrorist organization; instead, it would have to show that the person was engaged in international terrorism or in activities in preparation therefore. Such a showing would usually be sufficient to authorize criminal, as opposed to intelligence, surveillance.
This is a troubling precedent, but consider the reality: lone wolf surveillance authority has never been abused. In fact, it has never even been used. Not once. The Department of Justice recently sent a letter to Senator Leahy revealing for the first time that it has never even sought a surveillance order under the lone wolf provision. The JUSTICE Act would allow the provision to expire. The Leahy bill would reauthorize it for four more years. While the provision deserves some attention, a two-month debate about reauthorizing a power that has never been used would be a distraction from much more important matters.
The same consideration should inform the debate about how to reform Section 215, the "library records" provision of the Patriot Act. Section 215 permits the government to obtain an order from the Foreign Intelligence Surveillance Court requiring a person or business to produce any tangible thing, including business records. The government merely has to provide a statement of facts showing that the thing sought is relevant to an investigation. Section 215 orders normally come with a gag that bars anyone from disclosing to anyone else that the FBI sought or obtained materials under this section. The DOJ revealed that Section 215 was used 220 times from 2004-2007, and it said that a 2006 change in the law now makes use of Section 215 unnecessary in 173 of those cases. If that trend holds, Section 215 will be used to obtain records about ten times per year. Both the Leahy bill and the JUSTICE Act would tighten the standard for obtaining Section 215 orders by requiring a tie between the party whose records are being sought and an agent of a foreign power (the JUSTICE Act would require a stronger tie.) Both bills would limit the gag that accompanies Section 215 and would facilitate First Amendment challenges to the gag. These changes should be enacted, but the concerns with Section 215 orders pale in comparison to problems that we know exist with National Security Letters.
NSLs are form letters issued by FBI agents and officials of other agencies to compel disclosure of sensitive personal information held by banks, credit companies, telephone carriers, Internet Service Providers, travel agencies, jewelers, the Postal Service, insurance companies, casinos, car dealers and other businesses. To issue one of these demands, the government need merely convince itself that the information sought is relevant to an investigation - there is no judicial authorization of NSLs. Like Section 215 orders, NSLs come with a gag: you risk a prison term if you disclose that you received one. However unlike Section 215, NSLs are used not ten times per year, but tens of thousands of times each year. Moreover, the DOJ's Inspector General found rampant abuse and misuse of NSL authorities: they were used to get information for investigations that hadn't even been opened, to circumvent adverse rulings of the FISA court, and a single NSL was used to obtain records about thousands of individuals.
Reform of NSL authority should be at the top of the congressional agenda for the Patriot Act. Both the JUSTICE Act and the Leahy bill would make improvements in NSLs. The Leahy bill would require reports and audits on the use of NSLs, would require that NSLs include a statement of facts showing that the information sought is relevant to an investigation, and would impose procedures for lifting the gag that accompanies NSL orders. These changes will help address the civil liberties problems associated with NSLs, but they do not get to the heart of the matter: the standard for government access to sensitive records needs to be raised, in that the FBI should be required to appear before a judge in order to get sensitive financial, Internet and other records for intelligence purposes. NSLs are appropriate for less sensitive information, such as a person's name, address, email address and phone number, and other identifying information. The standard for issuing them should be raised to require a tie between the person whose records are sought and an agent of a foreign power.
But, most importantly, more sensitive information, like financial records and email and phone logs that reveal a complete picture of those with whom you associate, should be put beyond the reach of NSLs. The government could still obtain the information under Section 215, but would have to meet a higher standard and submit to judicial review. It could also use criminal authorities to obtain the information in appropriate cases. These are the reforms in the JUSTICE Act: it prevents abuse by removing the most sensitive personal information from the purview of the NSL statutes.
Patriot Act watchers should keep their eyes on the prize: the most important thing the Senate Judiciary Committee could do to protect civil liberties when it takes up the Leahy bill would be to lift the NSL provisions from the Feingold JUSTICE Act and insert them into the bill the Committee sends to the Senate floor.