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Sen. Specter: "Patriot Act has not been subject to abuse" (1/4)

Background: Sen. Arlen Specter is urging his colleagues to approve the 
so-called "conference report," which is a substantial rewrite of the 
Patriot Act. It expands surveillance power but increases oversight of 
how the law's being used. It also has plenty of unrelated Drug War 
silliness in it. More history is here:

Text of conference report:



December 9, 2005

Dear Colleague,

                Upon the Senate’s return during the week of December 
12th, we will be voting on the conference report reauthorizing the USA 
PATRIOT Act.  I write to seek your support and to explain how the 
provisions of the conference report retain the most important civil 
liberties and privacy protections from the bill that passed the Senate 
and include additional safeguards that emerged from the negotiations 
between the House and Senate conferees.  The conference report retains 
the tools essential to law enforcement in fighting international 
terrorism while significantly expanding protections for civil rights 
from the Act currently in force.

                Although the conference report contains many valuable 
provisions, such as important protections for the nation’s seaports and 
mass transportation systems, as well as new penalties to combat the 
growing problem with methamphetamine abuse, I would like to focus on 
several of the more contentious provisions of the PATRIOT Act itself.

Section 215: Business Records

The most controversial provision of the PATRIOT Act has been Section 
215, the so-called “library records” provision.  The conference report 
adds several safeguards to prevent abuse of Section 215 that neither the 
Senate bill nor the House bill contained.  First, the conference report 
requires a comprehensive audit by the Justice Department’s independent 
Inspector General of law enforcement use of Section 215.  Second, the 
conference report will permit, for the first time, public reporting of 
the total number of 215 orders sought and granted.  A third safeguard is 
the conference report’s provision that Section 215 orders may not be 
used merely for threat assessments.  This requirement ensures that 
Section 215 will be used only during those authorized investigations 
that have progressed somewhat beyond the initial stages.  A fourth new 
safeguard is that every order under Section 215 will require 
minimization procedures that curtail the retention and dissemination of 
information concerning United States citizens.

The conference report also retains key provisions from the Senate bill: 
(1) the requirement of a statement of facts to accompany an application 
for an order under Section 215; (2) the express vesting of discretion in 
the FISA judge to review, and to reject, the FBI’s application for a 215 
order; (3) the express right of recipients to consult legal counsel and 
seek judicial review of 215 orders; (4) the requirement of approval by 
the FBI Director, Deputy Director, or Executive Assistant Director for 
National Security before the government can seek library records, 
medical records, or other sensitive documents; (5) the enhanced 
reporting to Congress on the use of Section 215, including specific 
information concerning requests for the most sensitive documents; (6) 
the requirement that 215 orders can compel the production only of those 
tangible things that could be obtained under a grand jury subpoena or 
other orders issued by federal courts; and (7) the inclusion of a 
four-year sunset provision to guarantee that Congress will revisit 
Section 215 at a later time.

The major difference between the Senate bill and the conference report 
with respect to Section 215 is that the conference report authorizes the 
FISA court in certain narrow circumstances to issue a Section 215 order 
upon a showing of relevance to an already authorized terrorism 
investigation without a demonstration that the person’s records being 
requested is a known terrorist or acting on behalf of a foreign power. 
The relevance standard will apply only in extraordinary circumstances 
because the conference report is set up so as to channel all 
applications for orders under Section 215 into the three categories the 
Senate established in its reauthorization bill.  By establishing three 
circumstances to demonstrate relevance when the government shows a 
connection to a suspected terrorist or spy, the bill ensures that 
requests falling outside the three categories will be the exception and 
not the rule.  Thus, the Senate bill’s three-part test remains a 
substantial safeguard in the conference report.

Law enforcement will face an uphill battle in any effort to obtain a 215 
order that does not fall into one of the three categories and thereby 
provides an incentive for the FBI to use the tool only when it can show 
a connection to a suspected terrorist or spy.  This provision was deemed 
necessary because the Department of Justice was able, in a classified 
setting, to demonstrate that circumstances may exist in which an 
individual may not be known to a foreign power or be a recognized 
terrorist but may nevertheless be crucial to a terrorism investigation.

National Security Letters

                The conference report also makes important changes to 
the laws governing National Security Letters (NSLs), which the FBI has 
used for several decades to request communications records and financial 
information from third parties in intelligence and terrorism cases. 
First and foremost, the conference report makes explicit the right of 
NSL recipients to ask a court to set aside the requirement to turn over 
information as well as the requirement to keep the request for 
information confidential.  This is in stark contrast to current law, 
which affords no such explicit Second, in a protection analogous to one 
provided for Section 215, the conference report requires the Justice 
Department’s Inspector General to audit the FBI’s use of NSLs.  Finally, 
the conference report significantly enhances reporting to Congress and 
requires an annual public report on the FBI’s use of NSLs.  These 
reporting requirements enable both Congress, and the public, to ensure 
that NSLs are not being abused.

Section 213: Delayed-Notice Warrants

                The conference report has retained the important 
protections from the Senate bill’s amendments to Section 213 of the 
PATRIOT Act, which authorizes warrants allowing the government to wait a 
number of days after the search before notifying the target.  The 
conference report requires that a target be notified within 30 days of 
the search, unless the facts of the case justify a later date.  Although 
this period is longer than the 7-day time limit from the Senate bill, it 
is considerably shorter than the 180 days permitted in the House bill 
and is a significant improvement over the original PATRIOT Act, which 
imposes no limits on the period of delay beyond what is “reasonable.” 
And, like the Senate bill, the conference report permits extensions of 
the delay period only upon an updated showing of the need for further 
delay.  As in the Senate bill, these extensions are limited to 90 days, 
unless the facts justify a longer delay.  Finally, and again like the 
Senate bill, the conference report requires public reporting of all 
delayed-notice warrants.

Section 206: Multipoint Wiretap Orders

                Many, including myself, have discussed the need for 
changes to Section 206 of the PATRIOT Act, which authorizes multipoint 
or “roving” wiretap orders.  I think the conference report successfully 
meets that need.  The ability of the Justice Department to obtain 
multipoint wiretaps is in part a result of changes in communications 
technology that have made the use of cell phones ubiquitous.  Terrorists 
have taken advantage of those changes to cover their tracks by using 
multiple phones.

                Borrowing elements from both the House and Senate bills, 
the conference report limits the use of roving wiretaps to those cases 
in which the FBI includes in its application a “specific” description of 
the target and “specific facts in the application” that show the 
target’s actions may thwart surveillance efforts.  Further, the 
conference report adopts the Senate bill’s requirement that the FBI 
notify the court within 10 days of moving its surveillance of a target 
from one telephone number to another.  As an additional safeguard, the 
conference report requires that the FBI report periodically to Congress 
on its use of the roving wiretap authority.  Finally, like the Senate 
bill, the conference report includes a four-year sunset for Section 206 
so that Congress will revisit this provision in the near future.  I 
believe these important modifications will go far in preventing abuse of 
this provision.


                Much of the criticism has really involved complaints 
about the current PATRIOT Act without understanding the improvements in 
the conference report. Numerous hearings have determined that the 
PATRIOT Act has not been subject to abuse.  But in order to promote 
public confidence, the conference report includes significant changes 
that will enhance oversight by the Congress, the judiciary and the 
public at large.  The conference report represents a balanced compromise 
designed to maintain our ability to investigate—and hopefully 
preempt—terrorist attacks, while ensuring that the rights enshrined in 
our Constitution are not violated.

      Very truly yours,

      Arlen Specter

Posted by Declan McCullagh on Dec 12, 2005 in category privacy

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