Reforms of USA PATRIOT Act are Approved by House Judiciary Committee

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CONGRESSMAN

JERROLD NADLER

8th Congressional District of New York

 

Reforms of USA PATRIOT Act are Approved by House Judiciary Committee

 

Markup of Conyers, Nadler, Scott bill sets the stage for reauthorization of USA PATRIOT Act and reform of its overreaching provisions

 

FOR IMMEDIATE RELEASE: Thursday, November 5, 2009

CONTACT: Ilan Kayatsky, 212-367-7350

 

WASHINGTON, D.C. – Today, Congressman Jerrold Nadler (D-NY), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, applauded the House Judiciary Committee’s approval of H.R. 3845, the USA PATRIOT Amendments Act of 2009.  This legislation, introduced by Judiciary Chairman John Conyers (D-MI), Rep. Jerrold Nadler (D-NY) and Rep. Bobby Scott (D-VA), would amend and extend expiring PATRIOT Act provisions which are necessary in the fight against terrorism and, simultaneously, modify those provisions which have compromised the privacy and civil liberties of Americans.

 

Among the key reforms in the bill are provisions from Nadler’s National Security Letters Reform Act which would protect Americans from unwarranted invasions of privacy.  Under the bill, the FBI would be restricted to using National Security Letters (NSLs) only when seeking specific information pertaining to terrorists and never for fishing expeditions.

 

“Today, the Judiciary Committee took an important step toward reigning in the overbroad provisions of the USA PATRIOT Act and ensuring that the law is consistent with constitutional standards,” said Nadler.  “The PATRIOT Act is an important tool for law enforcement and intelligence gathering, but it is imperative that we protect our homeland without abusing executive power or unnecessarily compromising the privacy of American citizens.  The USA PATRIOT Amendments Act, in particular, 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.”

 

Brief Summary of H.R. 3845, the USA Patriot Amendments Act of 2009:

 

Title I:  Patriot Act Related Amendments

 

Roving Wiretaps

• Clarifies roving wiretap laws in order to ensure that the government only conducts surveillance on a single, identifiable target.

 

Section 215 Orders

• Improves the standard for issuing a Section 215 order by requiring specific and articulable facts to show that the tangible things sought are relevant to an authorized investigation, other than a threat assessment.
• Provides recipients of Section 215 orders with the ability to immediately challenge both the underlying order and any gag order associated with it.
• Facilitates compliance with already existing minimization procedures to ensure proper safeguards pertaining to information collected via Section 215 orders.
• Prohibits a request for Section 215 records to a library or bookseller for documentary materials that contain personally identifiable information concerning a patron.

 

Criminal “Sneak and Peak” Searches

• Adopts safeguards against abuse of searches where notice to subject of search is delayed by shortening the initial 30 day delay period to seven days, requiring that any application for an extension in the seven day delay be made by the Senate confirmed U.S. Attorney in the district where the delayed notice warrant was originally obtained, and removing ability to obtain delay by merely alleging that notice would “otherwise seriously jeopardize an investigation or unduly delay a trial.”

 

Pen Register and Trap and Trace Device

• Requires more specificity in the application for pen register and trap and trace and establishment of minimization procedures.

 

Nationwide Court Orders

• Allows a provider of electronic communication service or remote computing service to challenge a subpoena, order, or warrant requiring disclosure of customer communications or records in either the district in which the order was issued or the district in which the order was served.

 

Audits, Reports, and Sunsets

• Requires annual Inspector General audits and reports to Congress on the use of Section 215 orders, NSLs, and Pen Registers and Trap and Trace Devices through the end of 2013.
• Provisions pertaining to Section 215, NSLs, and roving wiretaps will sunset on December 31, 2013.

 

Lone Wolf

• Allows the Lone Wolf provision to sunset at the end of this year (December 31, 2009).

 

Title II: NSL Reform

 

• Ensures that the FBI can obtain basic information without a court order, but also adds reasonable safeguards.
• Improves the issuance standard for NSLs by requiring specific and articulable facts showing that there are reasonable grounds to believe that the information sought pertains to a foreign power or agent of a foreign power, and requires the FBI to record them in a written certification.
• Improves procedures which provide an opportunity for an NSL recipient to challenge the NSL itself and any gag order associated with it.
• Authorizes meaningful, constitutionally sound judicial review of NSLs and associated gag orders. 
• Requires the Attorney General to authorize the use of any information acquired or derived from an NSL in a criminal proceeding.
• Requires the Attorney General to establish minimization and destruction procedures to ensure that information obtained pursuant to an NSL regarding persons who are no longer of interest in an authorized investigation is destroyed.

 

Below is the text of Nadler’s opening statement for the markup of H.R. 3845:

 

“Mr. Chairman, I know that we must be vigilant in our fight against terrorism.  In fact, this fight has special meaning for me.  The World Trade Center is in my congressional district, and many of the almost 3,000 innocent people who were murdered on September 11, 2001 were my constituents and friends.  At the same time, if in this struggle we don’t hold true to our most basic American values, like protecting privacy and freedom, the terrorists will have already won.

 

“It was a little more than eight years ago, shortly after the tragedy of September 11, 2001 and in the passion of that moment, that Congress rushed through the original USA PATRIOT Act.  While I believe it is vital that law enforcement have the legal tools and resources it needs to prevent such an attack from ever happening again, the PATRIOT Act went too far.  As is often the case at the beginning of a conflict, passion got the better of Congress and too much unchecked power was given to the Executive Branch.  The PATRIOT Act was then, and is still today, simply inconsistent with the idea that we should protect our privacy from unwarranted government intrusion – a basic American value.

 

“That is why I am proud to be one of the lead original cosponsors of H.R. 3845, the USA PATRIOT Amendments Act of 2009.  This bill, which we are marking up today, will strengthen the PATRIOT Act, allowing us to protect both our civil liberties and our safety. 

 

“Among many other provisions, H.R. 3845 would: require the government to have sufficient facts in applying for a roving wiretap to make it clear the target is a single person; raise the evidentiary showing the government must meet before it can obtain records under Section 215; protect the privacy of what people are reading; reauthorize the authority for roving wiretaps and Section 215 orders until December 31, 2013; and, allow the ‘lone wolf’ provision, which has never been used and is not necessary, to expire.

 

“I want to highlight specifically the issue of National Security Letters (NSLs).  NSLs existed before the PATRIOT Act, but the PATRIOT Act significantly increased the unchecked ability of the Federal Government to use NSL authority to obtain people’s personal records.  As a result, the use of NSLs rose dramatically – as did their misuse.  We now know that the FBI improperly collected and retained personal information during this period, thanks to two reports from the Department of Justice’s Inspector General.  It lost records that were collected, putting our privacy and security at risk. 

 

“Under the Act, recipients are prevented from disclosing that they have received these demands for information – these ‘gag orders,’ as currently prescribed in statute, violate people’s rights and, not surprisingly, have been declared unconstitutional.

 

“Since 2005, I have introduced legislation to curb these abuses, to put some more controls on the use of NSLs and more judicial supervision on the ‘gag orders’ to ensure people’s constitutional rights.  I want to thank Chairman Conyers for including these provisions in the bill we are considering today.  H.R. 3845 would raise the standard for the FBI to meet before it can issue an NSL, by requiring that the FBI show ‘specific and articuable facts’ that the information requested “pertains to a foreign power or an agent of a foreign power.” Under this standard, the FBI would be able to use NSLs only when seeking information pertaining to terrorists, and not for fishing expeditions. 

 

“The bill also would modify the procedures surrounding the non-disclosure order, putting the burden on the government to justify coerced non-disclosure if a recipient wishes to make public receipt of an NSL.  This change would protect people’s First Amendment rights while still permitting the government, when necessary and appropriate, to keep an investigation and an NSL order secret.

 

“Finally, the USA PATRIOT Amendments Act would require the development of minimization and destruction procedures so that information obtained via NSLs that exceed the scope of the letter, or is no longer relevant, is destroyed to protect the public’s privacy.  There is no reason for the Federal Government to be amass and retain vast quantifies of information about tens of thousands of innocent people when that information is not helpful in actually fighting or preventing terrorism.

 

“These changes to the laws governing NSLs and the other provisions of this bill will help the government fight terrorism more efficiently and effectively, while improving the balance between liberty and security.  While some believe that H.R. 3845 should go even farther to protect civil liberties, I believe the bill will take us in the right direction.  I am confident that with its enactment, Americans will remain safe and, at the same time, have their freedom better protected.  I encourage all Members to support it.

 

“I yield back the balance of my time.”

 

 

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Jerrold Nadler has served in Congress since 1992. He represents New York’s 8th Congressional District, which includes parts of Manhattan and Brooklyn.