Powerful House members are proposing sweeping reforms to U.S. surveillance law that puts them on a collision course with legislation in the Senate that favors domestic spying.
The proposals (.pdf) come as key provisions of the Patriot Act are set to expire at year’s end. The act, hastily adopted six weeks after the 2001 terror attacks, greatly expanded the government’s ability to spy on Americans in the name of national security.
Lawmakers are taking the expiration as an opportunity to revisit a number of surveillance provisions, including elements of the Patriot Act that aren’t set to expire, including a 2008 law that granted legal immunity to phone companies that cooperated with the Bush administration’s warrantless wiretapping of Americans.
The proposals (.pdf) by House Judiciary Committee Chairman John Conyers Jr. (D-Michigan), Rep. Jerrold Nadler (D-New York) and Rep. Bobby Scott (D-Virginia) include a plan to alter the standard by which so-called National Security Letters are issued under the Patriot Act.
Under a provision that is not set to expire, NSLs allow the FBI, without a court order, to obtain telecommunication, financial and credit records relevant to a government investigation. The FBI issues about 50,000 NSLs annually, and an internal watchdog has found repeated abuses of the NSL powers.
The Conyers-Nadler-Scott package would restrict the government by only permitting NSLs in cases concerning terrorism or spy activities of an agent of a foreign power. If it became law, such a plan would vastly reduce whom the government could target.
A virtually identical proposal by Sen. Richard Durbin (D-Illinois) failed to get out of the Senate Judiciary Committee on Oct. 8 after lawmakers caved to FBI concerns that the changeover would jeopardize terror investigations.
Kevin Bankston, a privacy lawyer with the Electronic Frontier Foundation, applauded the latest NSL proposal.
“As currently written, NSLs can be used to obtain the records of somebody not suspected of a crime. It’s a suspicionless standard. Under the proposal they must relate to an agent of a foreign power, of somebody working for a foreign government or foreign terror organization, ” he said. “That ensures that there is a particularized suspicion rather than allowing them to go on a fishing expedition.”
Conyers, in a statement, said: “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.”
Whether these and the other proposals unveiled Tuesday would survive the House Judiciary Committee is unclear. No hearing date has been set. But the FBI and other counterterrorism agencies are expected to pressure committee members to follow the Senate’s path and not substantially alter Patriot Act spy powers.
The Obama administration, meanwhile, announced last month it was willing to consider “modifications” to the Patriot Act “provided that they do not undermine the effectiveness of these important authorities.”
Another of the Conyers measures would nullify (.pdf) 2008 congressional legislation — which is not part of the Patriot Act — that immunized the nation’s telecommunication companies from lawsuits accusing them of siphoning Americans’ electronic communications to the National Security Agency without warrants. The Electronic Frontier Foundation sued AT&T in a San Francisco federal court, which dismissed the case because of the immunity legislation, which President Barack Obama voted for as an Illinois senator.
A similar immunity bill by Sen. Russ Feingold (D-Wisconsin) has not received consideration by a Senate committee.
The House proposal would also renew, but weaken, a Patriot Act “roving wiretap” provision expiring at year’s end. The law currently allows the FBI to obtain wiretaps from a secret court — known as the Foreign Intelligence Surveillance Act Court or FISA court — without having to identify the target or what method of communication is to be tapped. The Conyers proposal, while not requiring the government to disclose who is the target, requires the FBI to specify that a single person is being targeted.
The House proposal would also do away with the so-called “lone wolf” measure that expires at year’s end — 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. The government has said it has never invoked that provision, but that it wants to retain the authority to do so.
A Feingold measure to do away with the “lone wolf” concept was defeated two weeks ago by the Senate Judiciary Committee.
Another proposal on the House table is similar to a measure the Senate Judiciary Committee sent to the full Senate two weeks ago.
It concerns one of the more controversial provisions of the Patriot Act — Section 215, the third and final expiring provision. The section allows the secret FISA court to authorize broad warrants for most any type of record, including those held by banks, libraries and doctors.
Neither the Senate nor the House require the government to show a connection between the items sought under a Section 215 warrant and a suspected terrorist or spy. But the Senate version and the latest House proposal require such a connection when it comes to library records.]
By David Kravets
October 21, 2009