Looks as if the Patriot Act is going to be renewed, with some minor adjustments. Congress has been wrangling over this for a little while now, and they seem to have come up with a workable solution.
Orin Kerr, November 16, 2005 at 9:55pm
A Very Tentative Reaction to the Patriot Act Compromise: I just finished reading the compromise language hammered out to settle the future of the Patriot Act, and I wanted to blog some initial thoughts. Importantly, these thoughts are highly tentative: I sat down with the 97 pages of statutory text ( http://action.aclu.org/patriotdraft/draft_p1.pdf ) for about an hour before I started to write this post, and it’s always possible I missed something important or misconstrued some key sections. With that caveat made, here is my take. [UPDATE: This posts assumes the compromise bill will become law, although according to this story ( http://www.breitbart.com/news/2005/11/16/D8DTTNVO4.html ), it may not.]
This is a win-win bill, but on the whole it’s more of a win for the Administration. The basic structure of preexisting law remains in place, but the new law bolsters judicial review and enhances record-keeping and Congressional oversight concerning some of the most controversial provisions of the Patriot Act. From the government’s perspective, they get to keep the Patriot Act, subject to some new restrictions. From a civil libertarian perspective, they are stuck with the Patriot Act, but get some of the increased judicial review and Congressional oversight they wanted. On the whole, the compromise is more or less what I expected. Each side gave up something relative to their positions in 2001, but the Administration’s better bargaining position (owing to a relative lack of current public opposition to the Patriot Act) meant that the government gave up less.
Here is a summary of the key developments.
Section 215 Orders. The big changes here are judicial review of order applications, explicit rights to challenge orders, and increased Congressional oversight. To obtain a Section 215 order for the production of “tangible things,” the government must show facts establishing reasonable grounds that the items are relevant to an authorized investigation. The language here is pretty poorly written, but I think the factual showing is reserved for cases that do not invove a “United States person,” FISA-Speak for U.S. citizens and lawful permanent residents. The basic idea: the government has to prove the case for relevance to a judge if the order concerns a citizen or permanent resident.
The Section 215 provisions add a regime of judicial review after the order has been signed, as well. People who receive a Section 215 ordes can consult with attorneys and challenge the order in the FISA court on the ground that the order “does not meet the requirement of [the] section or is otherwise unlawful.” The FISA Court of Review can hear appeals from the FISA court’s resolution of those challenges, and the losing party can then file a petition for certiorari before the Supreme Court.
DOJ has to do lots of record-keeping relating to Section 215 orders, as well. In annual reports, DOJ must disclose the number of orders granted, modified, or denied, and must give breakdowns for particular types of orders, such as library circulation records, library patron lists, book sales records, book customer lists, firearm sales records, tax return records, etc. Finally, the DOJ Inspector General has to do a comprehensive and detailed audit of how Section 215 powers are being used.
Sneak and Peek Warrants. The compromise bill also imposes a few additional limitations (albeit rather weak ones) on delayed notice warrants. Existing law permits judges to delay notice on warrants for a “reasonable period” for a range of reasons. The new language replaces the “reasonable period” standard with this rather puzzling standard: “a reasonable period not to exceed 30 days after the date of [the warrant’s] execution, or on a later date certain if the facts of the case justify a longer period of delay.” I suppose judges may read this as establishing a presumption that a “reasonable period” normally will not exceed 30 days, but it’s not really clear.
The sneak-and-peek provisions also add a requirement that judges who authorize delayed notice warrants must file a report with the Administrative Office of the United States Courts explaining that a warrant was applied for, and granted, listing the period of delay, and the crime under investigation. The Administrative Office will then provide Congress with an annual report summarizing the data they received by judges. It’ll be interesting to see if the reporting requirement makes some judges less willing to issue delayed notice warrants; I would imagine that some judges would rather not have to file the reports.
National Security Letters. Finally, the compromise bill adds some new regulations of National Security Letters (NSLs), letters issued by the FBI ordering the disclosure of third-party records. First, recipients of NSLs can file a petition in any district court in which they live or do business asking the district court to modify or set aside the order on the ground that compliance would be “unreasonable, oppressive, or otherwise unlawful.” They can also petition the court for permission to no longer be bound by the gag orders that accompany NSLs. District courts can modify or set aside gag orders if they find “that there is no reason to believe that disclosure may endanger the national security of the United States” or interfere with an investigation or diplomatic relations. At the same time, the Attorney General, Assistant, AG, and FBI Director retain the right to file a certification in the action stating that disclosure would endanger those interests; if such a certification is filed, it is conclusive unless the court believes it was filed in bad faith.
Finally, the Inspector General of DOJ has to perform a detailed audit of how the NSL authority is being used.