LEGISLATIVE BULLETIN | February 15, 2011

H.R. 514, PATRIOT Act Extension

Summary:

Three provisions of the Foreign Intelligence Surveillance Act of 1978 will expire at the end of this month.  Two were enacted by the USA PATRIOT Act which was signed into law on October 26, 2001, in the wake of the September 11 terrorist attacks: the authority for roving wiretaps and Section 215 orders, commonly known as the business records provision.  A third, on the authority to collect against “lone wolves,” was enacted in the Intelligence Reform Act of 2004.  In the last Congress, these authorities were extended twice, first from December 31, 2009 to February 28, 2010, and then to February 28, 2011.  The extension of these provisions is expected to receive bipartisan support on the Senate floor.

This week, the House of Representatives passed H.R. 514 with broad bipartisan support, extending the three expiring provisions through December 8, 2011. In the Senate, Senators Reid and McConnell are offering a substitute amendment to H.R. 514 that will provide a short-term extension of the authorities, through May 27, 2011.

Legislative Background:

The following three provisions of the USA PATRIOT Act will expire on February 28, 2011:

“Roving Wiretaps”

Section 206 of the USA PATRIOT Act authorizes roving wiretaps in relation to foreign intelligence collection that permit electronic surveillance of a person, without specifying the phone or computer, if that person demonstrates an intent to evade surveillance – for example, by switching cell phones on a regular basis.  Long used in criminal investigations, roving wiretaps are court-approved and may cover any communications device that the target uses or may use.  Like roving criminal wiretaps, roving wiretaps under FISA do not require the government to ascertain where the targeted communication will take place.  In short, the government may obtain an order to conduct surveillance that specifies a target (though not necessarily by name) but not a specific device to tap, although the order must provide a description of the target if a name is not known. 

According to the Department of Justice, the government has sought roving surveillance authority in fewer than 20 cases per year between 2001 and 2010, on average.  In testimony in 2009, FBI Director Mueller argued, “With the new technology, it is nothing to buy four or five cell phones at the same time and use them serially -- to avoid coverage. And the roving wiretaps are used in those circumstances, where we make a case that is going to happen. And we've got approval for it. It's essential, given the technology and the growth of technology that we've had.” [Senate Judiciary Committee, 9/16/09]

Access to Business Records and Tangible Things

Section 215 of the USA PATRIOT Act allows the government to seek court-ordered production of “any tangible thing,” including business records, in intelligence investigations.  The provision both expanded the scope of materials that may be sought and lowered the standard for a court to issue an order compelling their production. [CRS, 3/2/10]

Section 215 has been described as the “library provision” because of concerns raised by librarians about disclosing library records under this provision.  Under a 2005 amendment, if library records were sought under the USA PATRIOT Act, the application would need to be approved by one of three high-ranking FBI officers. [CRS, 3/2/10]. 

“Lone Wolf”

Section 6001(a) of the Intelligence Reform and Terrorism Protection Act permits surveillance against a so-called “lone wolf,” a non-U.S. person engaged in “international terrorism” for whom the government does not have evidence of ties to a foreign terrorist group.  Enacted in 2004, supporters of this provision cite the case of Zacarias Moussaoui, in which FBI agents allegedly had insufficient evidence of his affiliation with a foreign terrorist organization and therefore could not get a court order to access his computer.  However, a report issued by Senators Specter, Leahy and Grassley in 2003 concluded that key FBI personnel working on the Moussaoui case misunderstood the FISA legal requirements, and that there was sufficient evidence to obtain a FISA court order if the FBI had applied for one. [CRS, 3/2/10; Statement of Assistant Attorney General David Kris, 9/23/09]

In September 2009, a U.S. Department of Justice official stated that the so-called “lone wolf” provision had never been used, and the Department recently confirmed that it still has not been used.  The Department nonetheless asked that the provision be extended. [Statement of Assistant Attorney General David Kris, 9/23/09]

Alternative Extensions Introduced in the 112^th Congress:

Sen. Feinstein - S.289

Senator Feinstein introduced S. 289, which would extend the expiring provisions through December 31, 2013, with no modifications.  S. 289 would also extend the sunsets in the FISA Amendments Act of 2008 from December 31, 2012 to December 31, 2013, so that the sunsets of all four authorities are aligned on that date.

Sen. Leahy - S.193

S. 193 would extend the expiring provisions through 2013, with some modifications.  Sen. Leahy has also introduced S. 290, which is identical to S. 193.

Sen. Leahy’s bill modifies Section 215, the business records provision, by requiring officials to declare how records sought are relevant to the investigation. Under current law, records can be deemed presumptively relevant. In addition, under Sen. Leahy’s proposal, the government would need to meet a higher standard to use this authority to obtain library circulation records and patron lists.  Sen. Leahy’s legislation would also strike the one-year waiting period before a recipient can challenge a nondisclosure order for Section 215 orders and strike the conclusive presumption in favor of the government on nondisclosure.   [S. 290; Leahy Press Release, 1/26/11]

Sen. Leahy’s bill would add a new sunset date of December 31, 2013, for National Security Letter authorities, which were dramatically expanded in the USA PATRIOT Act. In addition, Sen. Leahy’s proposal would require the FBI to retain an internal statement of facts demonstrating the relevancy of information sought to its investigation before it can issue a National Security Letter (NSL). The Leahy bill also would require the attorney general and the Justice Department inspector general to provide periodic reports to congressional overseers to ensure that certain investigative tools are being used responsibly.  [S.290; Leahy Press Release, 1/26/11; Washington Post, 2/9/11]

Sen. McConnell – S. 291

Senate Republicans introduced S. 291, which would make the expiring provisions of permanent.

Key Roll Call Votes:

On February 27, 2010, President Obama signed H.R. 3961 (Public Law 111-141), a one-year extension of several expiring provisions of the Patriot Act. Three provisions were extended:  FISA roving wiretaps; Section 215 FISA business records orders; and the “lone wolf” provision in FISA. [Public Law 111-141; CRS, 3/2/10]

Key Roll Call Votes:

Final Senate Passage: Passed by unanimous consent, 2/24/10

Final House Passage: Passed 315-97, House Vote 67, 2/25/10

In December 2009, Congress cleared a short-term, 60-day extension of expiring Patriot Act provisions as part of H.R. 3326, the fiscal 2010 Defense appropriations bill (PL 111-118).

Key Roll Call Votes:

Final Senate Passage: Passed 88-10, Senate Vote 384, 12/19/09

Final House Passage: Passed 395-34, House Vote 985, 12/16/09

In March 2006, the Senate voted to reauthorize the 16 expiring provisions of the USA PATRIOT Act. While the bill made 14 provisions permanent, it put a 2009 expiration date on the provisions allowing “roving wiretaps” and access to business records. The vote came after the Bush administration agreed to allow three minor changes to the package, including a change that would allow recipients to challenge the gag order on a business records request.

Key Roll Call Votes:

Final Senate Passage: Passed 89-10, Senate Vote 29, 3/2/06

Motion to invoke cloture on changes to the reauthorization bill: Passed 69-30, Senate Vote 23, 2/28/06

In February 2006, the Senate voted to extend 16 expiring provisions of the USA PATRIOT Act for five weeks, though March 10.

Key Roll Call Votes:

Final Senate Passage: Passed 95-1, Senate Vote 11, 2/2/06

In December 2005, the Senate agreed to extend the 16 expiring provisions of the USA PATRIOT Act by six months. The compromise came just days after Senate Democrats, with the support of four Republicans, “blocked a vote to renew the act in hopes of winning stronger civil liberties provisions in the new law.” [Knight Ridder, 12/22/05]

Key Roll Call Votes:

Motion to invoke cloture on reauthorization: Rejected 52-47, Senate Vote 358, 12/16/05

House vote on reauthorization: Passed 251-174, House Vote 627, 12/14/05

The Intelligence Reform and Terrorism Prevention Act of 2004, which passed in December 2004, included the so-called “lone wolf” provision.

Key Roll Call Votes:

Final Senate Passage: Passed 89-2, Senate Vote 216, 12/8/04

Final House Passage: Passed 336-75, House Vote 544, 12/7/04

The initial USA PATRIOT Act was signed into law in October 2001.

Key Roll Call Votes:

Final Senate Passage: Passed 98-1, Senate Vote 313, 10/25/01

Final House Passage: Passed 357-66, House Vote 398, 10/24/01

 

DPC