Committee Votes, Narrowly, To Extend PATRIOT Act Provisions

The Senate Judiciary Committee today narrowly passed a measure to extend three provisions of the PATRIOT Act set to expire in December. 11 senators (nine Democrats and two Republicans) voted "yes"; eight (three Democrats and five Republicans) voted "no."

The bill will have to be approved by both the Senate and House, and today's narrow margin foreshadowed what could be a tough fight on the floor of both chambers, particularly if the bill is subject to amendments.

The three provisions set to expire are:

1) Roving wiretaps, which allow the FBI and other authorities to eavesdrop on targets even as they change phones and communications technologies;

2) The "lone wolf" provision, which allows for surveillance of an individual that can't be connected to a larger organization or foreign state; and

3) Section 215 authorities for National Security Letters (administrative subpoenas for documents and physical materials related to individuals)

All three provisions would be extended under today's legislation, which was brokered by Chairman Patrick Leahy (D-VT) and Intelligence Committee Chairwoman Dianne Feinstein (D-CA), who also sits on the Judiciary Committee, through a series of negotiations between the two.

But today's legislation would also place some new restrictions on the government, and it would give more power to the courts. Here are some key elements in the legislation approved by the committee:

1) The government would have to provide a court with a statement of facts and circumstances indicating a person sought-after information is relevant to an investigation before it can either a) trace incoming and outgoing phone numbers on a phone, or b) subpoena physical things, like documents and records, related to a person via a National Security Letter under Section 215

2) National Security Letter authority will now return to pre-PATRIOT Act standards unless Congress acts before Dec. 31, 2013

3) The government would have to disclose not only how many National Security Letters have been prescribed, but what types of people they target

4) Recipients of National Security Letters would be notified that they can challenge gag orders--which are administered if authorities with security clearance deem it necessary--prohibiting them from telling anyone about the National Security Letter they've received. They could challenge such orders in Federal District Court at any time and the government then would have to seek an order of compliance with the gag order from the court, which could set the terms of the gag order as appropriate to the case.

5) The government would have to conduct new audits of its use of phone traces and National Security Letters

6) The government would have to implement court-approved "minimization procedures" for phone-trace data and documents and records that were subpoenaed, to prevent the dissemination of any non-public information it obtained with regard to non-consenting individuals.

The ACLU put out a statement today opposing the bill as it was reported out of committee: "We are disappointed that further changes were not made to ensure Americans' civil liberties would be adequately protected by this Patriot Act legislation. This truly was a missed opportunity for the Senate Judiciary Committee to right the wrongs of the Patriot Act and stand up for Americans' Fourth Amendment rights," Michael Macleod-Ball, acting director of the ACLU Washington Legislative Office, said.

Given the opposition from both the ACLU and three Democrats on the committee--even as two Republicans supported the bill--extending these parts of the PATRIOT Act could draw some significant debate both from liberal Democrats and conservative Republicans as the bill moves toward the Senate floor.

UPDATE: This post was corrected to reflect that 1) National Security Letter authorities aren't expiring (Section 215 is something different entirely), and 2) statements of facts and circumstances would only be required to show that sought-after information (not the people it pertains to--e.g. the guy who's getting wiretapped) would be relevant to a case.