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News

"Patriot" Act Reforms Are Defeated

(March 17, 2006) - Despite passionate opposition, and a tireless fight by publishers, booksellers, librarians, and others, the most controversial provisions of the "USA Patriot" Act were renewed by Congress in early March, and signed into law by President Bush. A change of heart by four Senate Republicans scuttled compromise legislation that was hammered out late last year. The compromise would have taken a few steps toward restoring free expression and privacy rights that were ignored when the original Patriot Act was hurriedly passed just weeks after 9/11/2001.

Among the most objectionable provisions of the law is 215, which was renewed for another four years. It allows FBI agents to obtain an order from a Foreign Intelligence Surveillance Act (or "FISA") court, demanding any bookstore or library records that they deem "relevant" to a counter-terrorism or counter-espionage investigation. It also imposes a gag order on anyone who receives a 215 demand.

The compromise bill would have clarified that recipients of 215 gag orders could challenge them in the FISA court. The law as passed by Congress requires that recipients wait a year before bringing such a court challenge. This is actually a step backwards, for as the Electronic Frontier Foundation (EFF) pointed out, a lawsuit brought by the ACLU

already demonstrated that these gag orders could be successfully challenged in court ... This new reform actually makes things worrse: under the new law, these gag orders can't be challenged at all within a year of being issued, and if the government simply tells the court that lifting the gag order will hurt national security, the government wins.1

Suppressing any information or discussion about 215 demands while they are fresh, and therefore still relevant to current events, deprives the public of needed information on government activities and stifles the ability of those who question government policy to counter Administration claims. It remains to be seen whether the courts will uphold the one-year delay, and the very limited scope of review that the amended law gives to the FISA court.

In another ostensible reform, the Patriot Act renewal allows those who receive 215 demands to consult attorneys and prevents the FBI from demanding the lawyers' names. EFF points out, however, that "this 'reform' simply removed something bad from one of the renewal bill's earlier versions; it didn't change the original Patriot Act at all."2

The amendments clarify that both 215 orders and National Security Letters (or "NSLs"), which don't require any prior judicial approval, even by the secret FISA court, can be challenged in court. A new section of the federal criminal code provides for challenges to both NSL production demands and gag orders in federal district courts. But if the gag order challenge is filed within one year, all the government has to do is certify that disclosure might "endanger the national security...or interfere with diplomatic relations," and the court must treat that assertion as conclusive. With some technical differences, essentially the same rule applies even if the challenge is brought after a year has passed.3

Finally, an amendment to the statutory provision governing NSLs provides that a library is not considered "a wire or electronic communication service provider" for purposes of the NSL law, unless it is providing an "electronic communication service."4 This suggests that Congress wants the FBI to use 215, rather than the even more streamlined NSL procedure, if it wants to get records of library patrons' reading choices.

Despite the renewal of key provisions of the Patriot Act, efforts to limit the government's search and surveillance powers continue. Senators Russ Feingold, Patrick Leahy, Jeff Bingaman, and Arlen Specter have introduced legislation that would repair some of the damage, while others in Congress are working to limit the government's broad powers to gather financial and other information through "National Security Letters." See the ACLU's "The Patriot Act: Where It Stands" and the American Booksellers Foundation for Free Expression Web site, for more on these ongoing efforts.

revised Oct. 5, 2006

For more detail on the Patriot Act, see FEPP's commentaries:

Patriot Act Renewal Stalls in Congress
Section 215 of the USA PATRIOT Act and National Security Letters: An Update (Oct. 2005)
The Impact of the USA PATRIOT Act: An Update (Aug. 2003)

NOTES

1. "Patriot Act Renewal Rubber Stamped," EFF Effector, 3/10/06. The amendment to 215 states that if the Attorney General or another high government official "certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive, unless the judge finds that the certification was made in bad faith." 50 U.S. Code 1861(f)(2)(C)(ii). This essentially deprives the court of any independent decisionmaking authority.

There were two successful court challenges to gag orders imposed by the government under another provision of the Patriot Act, relating to National Security Letters (or "NSLs"). Both decisions were vacated on appeal because of changes in the law. See Section 215 of the USA PATRIOT Act and National Security Letters: An Update (Oct. 2005).

2. "Patriot Act Renewal Rubber Stamped," EFF Effector, 3/10/06.

3. 18 U.S. Code 3511 (added March 9, 2006, Public Law 109-177).

4. 18 U.S. Code 2709(f) (added March 9, 2006, Public Law 109-177).


The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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