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. |