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Weak Sauce PATRIOT Reforms Not Weak Enough for DiFi

October 1st, 2009 · 12 Comments

Well, this is more than a little dispiriting.  As Kevin Bankston of EFF recounts, this morning’s hearing to mark up Patrick Leahy’s PATRIOT renewal and reform legislation was not flush with good news.  As I outlined over at The American Prospect this morning, and in a post at Cato earlier this week, the hope was that some of the robust and important civil liberties safeguards in Russ Feingold’s JUSTICE Act might make it into the far more modest Leahy bill.

Not only did that not happen, but Leahy’s bill was swapped out at the last minute for a substitute bill offered by Dianne Feinstein, which gutted even the incredibly limited checks and restraints Leahy had proposed. Here’s the “cheat sheet” staffers are circulating to explain what was removed:

Sunsets:
*       Modifies the sunset on National Security Letters to make clear that NSL authority will not expire on December 31, 2013, if not reauthorized, but will revert to the pre-2001Patriot Act law on NSLs.

Standard for Issuing a Section 215 Order for Business Records or Tangible Things
*       Modifies the standard in the introduced bill by eliminating the requirement that the government tie the investigation to one of three categories of a foreign power, and instead requires a statement of the facts and circumstances relied upon by the applicant to justify the applicant’s belief that the tangible things are relevant to an authorized investigation to obtain foreign intelligence information.
*       Preserves the higher standard contained in S. 1692 as introduced for highly sensitive library records.
*       Preserves new court approved minimization procedures and audits to ensure stronger privacy protections and a higher level of oversight.
Standard for Pen Register and Trap and Trace Devices:
*       Modifies the standard in the introduced bill by eliminating the requirement that the government tie the investigation to one of three categories of a foreign power and instead requires a statement of the facts and circumstances relied upon by the applicant to justify the applicant’s belief that the information likely to be obtained is relevant to an authorized investigation to obtain foreign intelligence information.
*       Preserves new court approved minimization procedures and audits to ensure stronger privacy protections and a higher level of oversight.

Standard for Issuance of NSLs and Challenges to NSL Nondisclosure Orders
*       Neither the bill nor the substitute changed the standard for issuance of an NSL.
*       Strikes the provision that established a one-year renewable limit on the term of a nondisclosure order issued with an NSL.
*       Strengthens an NSL recipient’s ability to challenge a nondisclosure order in Federal Court by allowing the recipient to challenge it at any time, and gives discretion to the court to set the terms of a nondisclosure order as appropriate to the circumstances.
*       Preserves the new audit for NSLs.
*       Requires a written statement of specific and articulable facts proving relevance before the government can issue an NSL.
Judicial Review of Section 215 Nondisclosure Orders
*       Strikes the one-year time limit before a recipient can challenge a Section 215 nondisclosure (gag) order.
*       Strikes that conclusive presumption in favor of the government on nondisclosure orders.

Here’s my even more concise cheat sheet: FML. The sunset business is fine, and it looks like this removes the stipulation that people who want to challenge NSL gag orders have to do so within a pretty brief time window after being served, which is good. It also shifts a bit more of the burden to the government to show that a gag order is actually necessary in the event of a challenge, but courts had essentially already ruled that the “conclusive presumption” was unconstitutional, so not too many brownie points for fixing that.  Just about everything else is a change for the worse or no improvement over the status quo. Most crucially, this strips away the requirement, contained in both the Leahy and Feingold bills, that people whose records are swept up by section 215 business record/”tangible thing” orders, or whose communications metadata is acquired via pen/trap, actually have some demonstrable connection to a suspected agent of a foreign power.

So why care? Well, it’s become clear over the course of these hearings that section 215 orders are central to some kind of classified collection problem, very likely involving data mining. Russ Feingold suggested today that there had been classified abuses of 215—presumably abuses not covered in the public versions of Inspector General reports, which explicitly note that they don’t cover some category of 215 orders, but redact the description of what’s not included. Now, under current law, applicants for 215 orders are supposed to make some kind of factual showing of “relevance” to a FISA Court judge.  And records pertaining to agents of foreign powers, or their activities, or people in contact with them, are all “presumptively relevant.”  Leahy’s bill would have just codified those three categories as the only ones that could be obtained.  But apparently that had to go because Feinstein was worried it would interfere with this sensitive collection program. That ought to be a little worrying, because it tells us that the program relies in some fairly significant way on the use of 215 orders to acquire records that lack even that tenuous connection to an actual suspected terrorist.

They wrapped up without a final vote on a bill to report out—though a few amendments were shot down—and they’ll reconvene in a week to knock something out.  So if you’re the type of person who does things like contacting your representatives in Congress, now would be a good time to start.

Addendum: Oh—tricksy, tricky DiFi. So, under current law if you want to get a 215 order, your application has to include “specific facts” establishing that there are “reasonable grounds to believe” the records you’re seeking are relevant to a national security investigation. And then the statute spells out that records pertaining to terrorists or people they have contact with are “presumptively relevant.” Feinstein’s bill scraps that and instead just asks for “a statement of the facts and circumstances relied upon by the applicant to justify the belief of the applicant” that records are relevant.  Now, if she went out of her way to change that language, she has to believe it makes some practical difference. And the only way I can see it making a difference is if we read it as literally shifting the (already incredibly light evidentiary burden) here from some kind of objective showing of reasonableness to a report of the applicant’s subjective psychological state, without even a hint that a showing of some direct link to a suspected terrorist is the preferred grounds.

Tags: Law · Privacy and Surveillance


       

 

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