Last Friday, before the Senate went on recess, they unanimously passed the renewal of the USA PATRIOT Act. Lawmakers must meet in conference when they return in the fall to iron out differences between the House and Senate versions.
Among the changes:
- The Senate version would extend the library-search power for another four years, while the House would extend it for 10 years.
- Both the House and Senate versions would impose a stricter standard for obtaining library records. But the Senate version goes farther, requiring that records sought pertain to a foreign power, an agent of a foreign power or a person in contact with a suspected agent. The House version requires only a showing that the records be relevant to a counterterrorism or counterespionage investigation.
- The House version would require the FBI director approve a request for records from a library or bookstore. The Senate would mandate that the FBI director or his deputy must sign off on demands for library, bookstore, firearms or medical records.
- Both the Senate and the House would allow recipients to challenge an order before the secret Foreign Intelligence Surveillance Court, but the Senate version would allow the recipient to challenge the order and the gag rule preventing disclosure of the order.
- Both versions would make clear that a person could consult a lawyer without violating the gag rule.
The controversy stems from National Security Letters, secret subpoenas which never see the inside of a courtroom and which have already been found unconstitutional by a district court. The government appealed, and the Electronic Frontier Foundation is fighting the appeal.
NSLs are practically immune to judicial review. They are accompanied by gag orders that allow no exception for talking to lawyers and provide no effective opportunity for the recipients to challenge them in court. This secret subpoena authority, which was expanded by the USA PATRIOT Act, could be applied to nearly any online service provider for practically any type of record, without a court ever knowing.
“The Constitution does not allow the FBI to secretly demand logs about Internet users’ Web browsing and email history based on vague claims of national security,’ said EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow Kevin Bankston. “The district court’s decision that National Security Letters are unconstitutional should have been a wake-up call to the House of Representatives, which just voted to renew the PATRIOT Act without adding new checks against abuse.’
Although such protections are lacking in the PATRIOT renewal bill that the House of Representatives recently passed, they are included in the Senate bill. It is not yet clear whether those protections will be included in the final bill when it reaches the President’s desk. — Electronic Frontier Foundation
The EFF is urging that lawmakers support the Senate version, as it is more protective of civil liberties.
Personally I would have let the whole unconstitutional mess sunset. But it seems we’re stuck with it, at least for now. Either way it goes in conference committee, Bush will sign it. At this point the most we can really do is try to limit the damage this renewal will cause.