September 17, 2009

Udall, Bingaman Lead Fight to Reform Patriot Act

Legislation Would Protect Privacy Rights and National Security

WASHINGTON – U.S. Senators Tom Udall and Jeff Bingaman today joined in introducing legislation to reform the Patriot Act and other surveillance laws to better protect Americans' constitutional right to privacy while providing the government with the tools necessary to effectively fight terrorism.

The legislation, titled the Judiciously Using Surveillance Tools in Counterterrorism Efforts (JUSTICE) Act, would:

  • Add reasonable safeguards for the FBI's use of National Security Letters, which require the disclosure of sensitive personal information by banks, credit card companies, and telephone and Internet service providers. NSLs don't require judicial approval, and recipients are barred from revealing that the records were demanded.
  • Repeal retroactive legal immunity for telecommunications companies that complied with the government's illegal warrantless wiretapping program.
  • Modify the so–called "John Doe" roving wiretaps, which allow the government to monitor suspects who may be trying to escape detection by using multiple phones or other communication devices.
  • Revise the "library records" provision, which currently allows the government to obtain orders for private records of American citizens even if they are not suspected terrorists. New safeguards would require the government to show that the individual has some connection to terrorism or espionage.

"The 2001 Patriot Act, its 2006 reauthorization, and the FISA Amendments Act of 2008 failed to protect the privacy rights of innocent Americans and did nothing to guard against potential abuse," Udall said. "The JUSTICE Act strikes the right balance between respecting the needs of our law enforcement to pursue suspected terrorists and upholding the rights of law–abiding citizens to live free from unnecessary government intrusion in their lives. I firmly believe we can keep our nation secure without infringing on the inherent rights of the American people. "

"We must provide law enforcement with the tools they need to protect our country, and do so in a way that also safeguards Americans' rights. This legislation addresses both of these important objectives by ensuring our security and upholding our cherished constitutional protections," Bingaman said.

Udall, a former federal prosecutor and New Mexico attorney general, was one of just 66 members of the 435–member House of Representatives to vote against the 2001 Patriot Act. He also opposed the 2006 Patriot Act reauthorization and the 2008 FISA Amendments Act after expressing strong objections about the impact of the proposals on the privacy rights of Americans.

The JUSTICE Act has been endorsed by more than two dozen organizations, including the American Civil Liberties Union, American Library Association, the Brennan Center of Justice, PEN American Center, and the U.S. Bill of Rights Foundation.

Sponsors of the legislation include: Russ Feingold (D–WI), Dick Durbin (D–IL), Jon Tester (D–MT), Bernie Sanders (I–VT), Daniel Akaka (D–HI) and Ron Wyden (D–OR).

JUSTICE Act Of 2009 Fact Sheet

The Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act would reform the USA PATRIOT Act, the FISA Amendments Act and other surveillance authorities to protect the constitutional rights of Americans while ensuring the government has the powers it needs to fight terrorism and collect intelligence.

Title I – Reasonable Safeguards to Protect the Privacy of Americans' Records

Sections 101-106 – National Security Letters
The bill rewrites the National Security Letter (NSL) statutes to ensure the FBI can obtain basic information without a court order, but also adds reasonable safeguards to ensure NSLs are only used to obtain records of people who have some connection to terrorism or espionage, and to provide meaningful, constitutionally sound judicial review of NSLs and associated gag orders.

Section 107 – Section 215 Orders
The bill would reauthorize the use of Section 215 business records orders under FISA, but with additional checks and balances to ensure these orders are only used to obtain records of people who have some connection to terrorism or espionage, and to provide meaningful, constitutionally sound judicial review of Section 215 orders and associated gag orders.

Title II – Reasonable Safeguards to Protect the Privacy of Americans' Homes

Section 201 – "Sneak & Peek" Searches
The bill would retain the Patriot Act's authorization of "sneak and peek" criminal searches but eliminate the overbroad catch–all provision that allows these secret searches in virtually any criminal case. It would shorten the presumptive time limits for notification, and create a statutory exclusionary rule.

Title III – Reasonable Safeguards to Protect the Privacy of Americans' Communications

Section 301 – FISA Roving Wiretaps
The bill would reauthorize roving FISA wiretaps, but eliminate the possibility of "John Doe" roving wiretaps that identify neither the person nor the phone to be wiretapped. It would require agents to ascertain the presence of the target of a roving wiretap before beginning surveillance.

Section 302 – Pen Registers and Trap and Trace Devices
The bill would retain the Patriot Act's expansion of the FISA and criminal pen/trap authorities to cover electronic communications, but would allow pen/traps to be used only to obtain information about people who have some connection to terrorism or espionage. It would impose additional procedural safeguards to serve as a check on these authorities.

Section 303 – Telecommunications Immunity
The bill would repeal the retroactive immunity provision in the FISA Amendments Act.

Section 304 – Bulk Collection
The bill retains the new warrantless authorities in the FISA Amendments Act but would prevent the government from using that law to conduct "bulk collection" of the contents of communications, including all communications between the United States and the rest of the world.

Section 305 – Reverse Targeting
The bill would ensure that the overseas warrantless collection authorities of the FISA Amendments Act are not used as a pretext to target Americans in the U.S.

Section 306 – Use of Unlawfully Obtained Information
The bill would limit the government's use of information about Americans obtained under FISA Amendments Act procedures that the FISA Court later determines to be unlawful, while giving the court flexibility to allow such information to be used in appropriate cases.

Section 307 – Protections for International Communications of Americans
The bill would amend the FISA Amendments Act to create safeguards for communications not related to terrorism that the government knows have one end in the United States.

Section 308 – Computer Trespass
The bill would guard against abuse of a warrantless surveillance authority in the Patriot Act that allows computer owners who are subject to denial of service attacks or other episodes of hacking to give the government permission to monitor trespassers on their systems.

Title IV – Improvements to Further Congressional and Judicial Oversight

Section 401 – FISA Public Reporting
The bill would require limited additional public reporting on the use of FISA.

Section 402 – Use of FISA Evidence
The bill would apply the Classified Information Procedures Act to the use of FISA evidence in criminal cases, and allow the use of protective orders and other security measures in civil cases, to ensure that courts have discretion to allow litigants access to information where appropriate while still protecting sensitive information.

Section 403 – Nationwide Court Orders
The bill would permit a recipient of a nationwide court order to challenge it either in the district where it was issued or in the district where the recipient is located.

Title V – Improvements to Further Effective, Focused Investigations

Section 501 – Domestic Terrorism
The Patriot Act's overbroad definition of domestic terrorism could cover acts of civil disobedience by political organizations. The bill would limit the qualifying offenses for domestic terrorism to those that constitute a federal crime of terrorism.

Section 502 – Material Support
The bill would amend the overly broad criminal definition of material support for terrorism by specifying that a person must know or intend the support provided will be used for terrorist activity.