Wednesday, October 21, 2009

Bill Introduced by House Democrats would Reform Patriot Act

Before I get to the good news regarding yesterday's introduction by Democratic Representatives John Conyers, Jerrold Nadler and Bobby Scott of their own PATRIOT Act reform legislation, let me briefly summarize why this action is so needed, and why it was likely undertaken.

As most are now aware, two weeks ago the Senate Judiciary Committee forwarded legislation to the full Senate that would reauthorize three expiring provisions of the Patriot Act adopted just after the September 11th attacks. The measures greatly expanded the government’s ability to spy on Americans in the name of national security.

Though Senators Feingold and Durbin put up an admirable fight on a variety of fronts, the committee approved allowing broad warrants to be issued by a secretive court for any type of record, from financial to medical, without the government having to declare that the information sought is connected to a terrorism or espionage investigation. A proposal that would put limits on such requests was defeated.

Members also renewed the so-called “roving wiretap” provision, allowing the FBI to obtain wiretaps from the secret court, known as the FISA court, without identifying the target or what method of communication is to be tapped.

Finally, the committee renewed the so-called “lone wolf” measure that allows FISA court warrants for the electronic monitoring of a person for whatever reason — even without showing that the suspect is an agent of a foreign power or a terrorist.

For some of my past posts on the debate in the Judiciary Committee, click here for more about Feingold's Justice Act, click here for more about Obama's broken promises on this issue, click here for my discussion of the "sneak and peak" provision, and click here for more on the "Lone Wolf" provision.

Now let's get back to the new bill — the USA Patriot Amendments Act of 2009 (HR 3845) - submitted yesterday in the House Judiciary Committee.

As rightly noted by the Electronic Frontier Foundation, this is fantastic news:

...the new bill is a significant improvement over the deeply flawed Senate bill, containing a substantial number of significant new checks and balances to the government's spying authorities under the PATRIOT Act — much like Senator Feingold's JUSTICE Act in the Senate, which was supported by EFF.

Not only have Representatives Conyers, Nadler, and Scott introduced a strong PATRIOT reform bill, but they've also gone even farther in seeking to protect their constituents' civil liberties by introducing a second bill (HR 3846) directed at reforming last year's FISA Amendments Act (FAA), which broadly expanded the government's authority to wiretap Americans without warrants and granted immunity to telcos that broke the law by assisting in the NSA's warrantless wiretapping program.

The second bill introduced today — which, amongst other reforms, would prohibit the "bulk collection" of Americans' emails and phone calls under the FAA and would repeal the FAA's telco immunity provision — is available here [PDF], with a section-by-section summary here [PDF]. A press release from House Judiciary describing both bills is available here.

Now let's get to more of the legislation's details, as reported by the Associated Press:

The proposal would eliminate the government's authority to spy on a "lone wolf," a non-U.S. citizen suspected of terrorism who may not be part of a recognized terrorist group. The Justice Department said the government has never used this authority but wants to keep it available.


Roving wiretaps still would be allowed, to permit surveillance on multiple phones when a suspect keeps switching cell phones. The bill would restrict surveillance to a single, identifiable target.

And the government still could obtain a court order to seize documents and other tangible items, including business records. The bill would require the government to produce specific facts, to show the items are relevant to an authorized investigation. Recipients of the search orders would be able to immediately challenge them and any gag order preventing disclosure.

The legislation would increase protections for libraries and bookstores. Records seizures would be prohibited if the material would identify patrons.


The proposal would repeal the retroactive immunity given to telephone companies, who complied with a Bush administration warrantless wiretapping program. Courts would have to determine whether the complying companies acted properly under laws in effect at the time.

Clearly, there's a lot here for civil libertarians to like. Click here for EFF's section by section review of the bill.

Here's what the three bill authors had to say:

"Over the past eight years, Americans grew tired of the same old scare tactics, designed to fool the public into believing that we needed to give up freedom to be safe from terrorism," said Conyers. "It is a new day and an opportunity for reform." The truth is that we can protect our nation from terrorist threats by giving our government the tools it needs while also ensuring there are checks and balances to protect against abuses."

"This legislation is borne of the necessity to reign in the overbroad provisions of the USA PATRIOT Act and ensure that the law is consistent with constitutional standards," said Nadler. "As we reauthorize expiring provisions of the USA PATRIOT Act, it is essential that we protect our homeland without abusing executive power or unnecessarily compromising the privacy of American citizens. In particular, this bill includes provisions of my legislation to reform National Security Letters — the National Security Letters Reform Act of 2009 – which are critical for protecting Americans against government invasion of privacy and, generally, for restoring critical checks and balances to our government. Notably, the bill would allow Americans to use libraries and bookstores without fear that their choice of books will be monitored by overzealous federal agents."

"Benjamin Franklin got it right when he said, ’those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety,’" said Scott. "These bills assure that we secure our liberties and our freedoms without diminishing either."

I'll be following the progress of this legislation VERY closely here in the coming weeks.

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