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Fact Sheet - How the Patriot Act Deal With the White House Falls Short on Protecting Freedoms  

February 10, 2006

The White House has agreed to only a few minor changes to the Patriot Act conference report – the same report that could not get through the Senate back in December. These changes do not address the major problems with the Patriot Act that a bipartisan coalition has been trying to fix for the past several years. Senator Feingold strongly opposes this deal, and any reauthorization of the Patriot Act that does not protect the rights and freedoms of law-abiding Americans with no connection to terrorism.

Critical Areas Where the Deal with the White House Falls Short:

Section 215 (“Library and Business Records”)
This deal does not prevent the government from obtaining the library, medical and other sensitive business records of people with no link to suspected terrorists. It also does not provide meaningful judicial review of the gag rule associated with Section 215 business records orders.

  • The deal struck with the White House leaves this provision unchanged from the conference report that failed to get through the Senate in December. The Senate bill that passed by unanimous consent in July 2005 would have ensured that the government cannot obtain the sensitive, personal records of Americans with no connection whatsoever to a terrorist or spy or their activities. The conference report replaces the Senate test with a low standard – the records just have to be “relevant” to a terrorist investigation, which is not adequate protection against a fishing expedition.

  • People who receive demands for documents under Section 215 of the Patriot Act are subject to a “gag rule.” The deal includes a provision allowing recipients of Section 215 gag orders to challenge those orders in court, but it does not guarantee meaningful judicial review. Under the deal, review of business record orders could only take place after a year has passed and could only be successful if the recipient proves that the government has acted in bad faith. The deal ignores the serious First Amendment problem with the gag rule under current law.

National Security Letters
This deal does not sunset the National Security Letter authorities, nor does it provide meaningful judicial review of the gag rule associated with National Security Letters.

  • The deal does not “sunset” the Patriot Act’s expansion of the National Security Letter authority. In light of recent revelations about possible abuses of NSLs, which were reported after the Senate passed its reauthorization bill in July 2005, the NSL provision, like section 215, should sunset in no more than four years so that Congress will have an opportunity to review the use of this power.

  • As with Section 215 orders, people who receive National Security Letters for documents under the Patriot Act are subject to a “gag rule.” The deal does not change a provision of the conference report that requires the court to accept as conclusive the government’s assertion that a gag order should not be lifted, unless the court determines the government is acting in bad faith. Not only did the deal not address this problem, it duplicated this insufficient judicial review provision in Section 215.

“Sneak and Peek” Searches
This deal does not ensure that when government agents secretly break into the homes of Americans to do a so-called “sneak and peek” search, they tell the owners of those homes in most circumstances within seven days, as courts have said they should, and as the Senate bill did.

  • This provision remains unchanged from the conference report that failed to get through the Senate in December.

The Deal With the White House Makes Only Three Minor Changes:

Judicial Review of Section 215 Gag Orders
As discussed above, the deal includes a provision allowing recipients of Section 215 gag orders to challenge those orders in court, but it does not guarantee meaningful judicial review. Under the deal, review of business record orders could only take place after a year has passed and could only be successful if the recipient proves that the government has acted in bad faith. The deal ignores the serious First Amendment problem with the gag rule under current law. Its response to the problems with the gag order identified by critics of the Patriot Act is insufficient.

NSL Recipients’ Notification to FBI of Consulting Attorney
The deal clarifies that people who receive a National Security Letter would not have to tell the FBI if they consult with an attorney. The deal would not address a similar provision in the Patriot Act conference report requiring the recipients of Section 215 business record orders to notify the FBI if they consult an attorney.

Libraries and National Security Letters
The deal states that the government cannot issue a National Security Letter to libraries unless the libraries provide “electronic communications services” as defined by statute. But that “NSL” statute currently applies only to entities that satisfy that definition, so this provision simply restates existing law.