Blog of Rights

Congress Drops the Ball on Upgrading Patriot Protections

By Suzanne Ito, ACLU at 4:07pm

We're sorry to say, but is anyone surprised that Congress has capitulated to post-underpants bomber fear-mongering and passed the three expiring provisions of the Patriot Act without so much as a debate?

Oh, you didn't hear about that?

Wednesday night, the Senate passed a straight one-year extension by voice vote, and last night, the House followed suit.

That’s right. No changes. Nothing. Nada. Zip, zilch, zero. (You get the picture.)

That leaves ordinary Americans like you and me without the civil liberties safeguards proposed by several bills last year. Both the House and Senate had bills that would have improved the Patriot Act. The Senate bill even had the support of the White House. But instead of passing the much-needed reforms, Congress:

  • Reauthorized Section 206, the "roving wiretap" provision that allows the FBI to wiretap a phone without having to provide the target's name or even phone number. And unlike other law enforcement agencies, the FBI doesn't even have to get permission to tap the specific phone before they tap it. The House bill would have required the government to name either the person or the place it wanted to tap.

  • Reauthorized Section 6001, a.k.a. the "lone wolf" provision. Section 6001 authorizes the government to get secret surveillance orders against individuals who are not associated with any international terrorist group or foreign nation. This handy-dandy tool in the FBI's arsenal isn't so handy—according to the Justice Department, it's never been used.

  • Reauthorized Section 215, a.k.a. the "library provision": Section 215 lowers the bar on the standard of proof needed to get a court order to access private info. Before Patriot, “specific and articulable facts” showing that the target of surveillance was the agent of a foreign power was required. After Patriot, Section 215 allows the FBI to only claim that the items or information sought is relevant to an investigation. That means the person being surveilled doesn't necessarily have to be the target of the investigation or even be suspected of involvement in terrorism. (It's called the Fourth Amendment, Congress. Read it sometime.)

In addition to the above expiring provisions that were reauthorized, sorely needed reform to the National Security Letter statute was also kicked to the curb. Under the original Patriot Act, the government can collect the records of innocent people whenever it deems them “relevant” to an investigation – without any oversight by an impartial court. Hence librarians, and other innocent Americans who have no connection to terrorism, were being served with NSLs. The original House bill would have amended the NSL authority so that the government can only access communications, financial and credit records when they pertain to a terror suspect or spy.

The NSL statue is also known for the gag order that comes with it, preventing NSL recipients from even telling anyone they got an NSL. The House and Senate bills would have required the government to meet traditional First Amendment standards by convincing a court that national security will be jeopardized if the NSL recipient who wants to speak out about the government's action is not gagged. This is key, because the ACLU has filed three lawsuits on behalf of NSL recipients, and most recently, a federal appeals court upheld a lower court ruling that the NSL statute's gag provisions violated the First Amendment.

Finally, another provision that had a chance at improvement: the use of “sneak and peek” searches, which allow the government to search a home without notifying the resident immediately whenever notice would jeopardize an investigation. The original House bill would have reined in this authority by removing this broad catch-all, but permits government officials to continue secret searches in emergency or urgent circumstances.

So despite report after report that's shown that the FBI has taken a shredder to the Constitution, Congress couldn't muster the courage stand up to for our rights. The FBI will run roughshod over our rights for another year.

So, we wait.

But Congress, it's on: you, us and the American people, behind the bleachers, February 2011. Bring it!

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