Short Summary of Senate Select Committee on Intelligence Patriot Act Reauthorization Bill, as Passed by Committee

In a closed mark-up on June 7, 2005, the Senate Select Committee on Intelligence (SSCI) passed a bill making permanent the new government powers subject to the Patriot Act sunsets. The bill also expands the Patriot Act with a number of new powers, including 1) FBI intelligence-gathering subpoenas that can be issued without a judge or grand jury and without any relevance to a criminal investigation, and 2) new powers to monitor the mail over the Postal Service's objections.

These new powers are strongly opposed by the American people. In an ABC News/Washington Post poll published June 9, 2005, majorities opposed the new FBI subpoenas, 64-38%, and opposed the new mail monitoring power 54-44%.

A few changes were made to the SSCI bill in committee. Sunsets.

• The bill makes permanent every expiring Patriot Act power, with the exception of the one expiring power that actually protects privacy - section 223, providing a remedy against unlawful government surveillance. That section is allowed to expire.
• The sunset for section 6603 of the Intelligence Reform Act of 2004, the so-called ""lone wolf"" provision which eliminates the ""foreign power"" safeguard for secret wiretaps and searches of non-U.S. persons under FISA, is extended for another four years (from 2005 to 2009), rather than being made permanent.

FISA records orders.

• FISA business records orders, expanded by section 215 of the Act, are amended:

o As provided in the original bill, the standard is changed explicitly to ""relevant"" from ""sought for,"" and consultations with attorneys are explicitly made exempt from the gag order. It does not require any specific facts that connect the records to a terrorist, spy or other foreign agent.

o A new section provides an explicit right to challenge the order and the gag order. The challenge must be in the FISA court, and the government may use secret evidence (evidence shown to a judge in chambers with no opportunity for the recipient to see or challenge) in order to resist a challenge.

o Challenges to the gag order can be vetoed by a certification from the FBI Director to the FISA Court ""that disclosure may result in a danger to the national security of the United States.""

Mail covers.

• As provided in the original bill, the FBI is given the mandatory power to get mail covers (which actually includes copying the contents of some mail) in FISA investigations. The Postal Service ""must comply"" despite any objections.
• As provided in the original bill, ""mail covers"" explicitly allows the copying of any information on the outside of an envelope, and allows the opening and copying of the contents of any second, third or fourth-class mail and any International Parcel post mail.
• The standard is the same as for business records orders - a certification of relevance. No specific facts are required to connect the mail to any terrorist, spy or other foreign agent. Mail can be monitored even if the person is not suspected of being a foreign agent or doing anything wrong, if the certification is made.

Administrative subpoenas.

• As provided in the original bill, the FBI is given the power, without any prior review by a court or grand jury, and without the approval of a DOJ attorney, to issue records demands for intelligence investigations for any ""records or other materials."" The standard is only that the government asserts the information is relevant.
• The subpoenas are not limited to an emergency where the FBI would lack time to get a grand jury subpoena or business records order from the FISA court.
• A challenge can be filed in any district court where the recipient resides or carries on business or in the FISA court, and the government can seek enforcement in any of these courts. If the government seeks enforcement, the challenge is dismissed and is heard in the court the government chose. The government may use secret evidence (evidence shown to a judge in chambers with no opportunity for the recipient to see or challenge) to resist challenges.
• The subpoenas are not subject to an automatic gag order, but are subject to a gag order if the government certifies ""that a danger to the national security may result"" from disclosure. (Attorneys are exempted from the gag). The gag order is permanent, until lifted by the government.

Definition of ""content"" for FISA surveillance.

• The bill now defines ""content"" of communications for FISA. This is important because content may not be intercepted using pen/trap or other techniques that do not require ""foreign agent"" probable cause. The definition is that ""content"" means ""any information concerning the substance, purport, or meaning of such communication."" How protective such a definition would be will depend on how it is interpreted by the Justice Department and how the FISA court responds to that interpretation.

Other provisions.

• The bill still contains an expansion of the type of information that can be obtained from a communications service provider, without ""foreign agent"" probable cause, in connection with pen/trap surveillance, including the name, address, telephone or other device number (such as an IP address), customer records, and credit card numbers.
• The bill expands the initial duration of some FISA surveillance orders to as long as a year and further expands the definition of ""agent of a foreign power"" to include non-U.S. persons who aid and abet, or conspire.