House Judiciary Committee to Propose PATRIOT and FISA Reforms
John Conyers, Jerry Nadler, and Bobby Scott just introduced bills that will provide needed reforms to PATRIOT and FISA while reauthorizing most of the sunsetting authorities this year.
From the Committee press release, the PATRIOT bill does the following.
Title I: Patriot Act Related Amendments
Roving Wiretaps
• Clarifies roving wiretap laws in order to ensure that the government only conducts surveillance on a single, identifiable target.
Section 215 Orders
• Improves the standard for issuing a Section 215 order by requiring specific and articulable facts to show that the tangible things sought are relevant to an authorized investigation, other than a threat assessment.
• Provides recipients of Section 215 orders with the ability to immediately challenge both the underlying order and any gag order associated with it.
• Facilitates compliance with already existing minimization procedures to ensure proper safeguards pertaining to information collected via Section 215 orders.
• Prohibits a request for Section 215 records to a library or bookseller for documentary materials that contain personally identifiable information concerning a patron.
Criminal “Sneak and Peak” Searches
• Adopts safeguards against abuse of searches where notice to subject of search is delayed by shortening the initial 30 day delay period to 7 days, requiring that any application for an extension in the 7 day delay be made by the Senate confirmed US Attorney in the district where the delayed notice warrant was originally obtained, and removing ability to obtain delay by merely alleging that notice would “otherwise seriously jeopardize an investigation or unduly delay a trial.”
Pen Register and Trap and Trace Device
• Requires more specificity in the application for pen register and trap and trace and establishment of minimizations procedures.
Nationwide Court Orders
• Allows a provider of electronic communication service or remote computing service to challenge a subpoena, order, or warrant requiring disclosure of customer communications or records in either the district in which the order was issued or the district in which the order was served.
Audits, Reports, and Sunsets
• Requires annual Inspector General audits and reports to Congress on the use of Section 215 orders, NSLs, and Pen Registers and Trap and Trace Devices through the end of 2013.
• Provisions pertaining to Section 215, NSLs, and roving wiretaps will sunset on December 31, 2013.
Lone Wolf
• Allows the Lone Wolf provision to sunset at the end of this year (December 31, 2009).
Title II: NSL Reform
• Ensures that the FBI can obtain basic information without a court order, but also adds reasonable safeguards.
• Improves the issuance standard for NSLs by requiring specific and articulable facts showing that there are reasonable grounds to believe that the information sought pertains to a foreign power or agent of a foreign power, and requires the FBI to record them in a written certification.
• Improves procedures which provide an opportunity for an NSL recipient to challenge the NSL itself and any gag order associated with it.
• Authorizes meaningful, constitutionally sound judicial review of NSLs and associated gag orders.
• Requires the Attorney General to authorize the use of any information acquired or derived from an NSL in a criminal proceeding.
• Requires the Attorney General to establish minimization and destruction procedures to ensure that information obtained pursuant to an NSL regarding persons who are no longer of interest in an authorized investigation is destroyed.
And the FISA bill does the following:
H.R. 3846, FISA Amendments Act of 2009 Brief Summary
Telecommunications Immunity
• Repeals the retroactive immunity provision in the FISA Amendments Act of 2008, leaving it to the courts to determine whether telephone companies that complied with the illegal warrantless wiretapping program acted properly under the laws in effect at the time and therefore deserve immunity.
Bulk Collection
• Prevents the government from using the warrantless collection authorities of the FISA Amendments Act of 2008 to conduct “bulk collection,” which could include the collection of the contents of all communications between the United States and the rest of the world.
Reverse Targeting
• Places additional limits on the warrantless collection authorities of the FISA Amendments Act of 2008 to ensure that they are not used as a pretext when the government’s real goal is to target the Americans with whom the ostensible foreign target is communicating.
Use of Unlawfully Obtained Information
• Limits the government’s use of information about U.S. persons that is obtained under FISA Amendments Act of 2008 procedures that the FISA Court later determines to be unlawful, while still giving the FISA Court flexibility to allow such information to be used in appropriate cases.
Protections for International Communications of Americans
• Permit unfettered acquisition of foreign-to-foreign communications and of communications of suspected terrorists into or out of the United States, while creating safeguards for communications not related to terrorism that the government knows have one end in the United States.
Wow! That looks like a good set of reforms. Kinda like the ones in the Senate that were then removed by the SJC after someone made too many trips to the beauty supply store.
Next terrorist scare in 3, 2, 1…
Yup, this will gut the data mining programs they’re doing.
Meanwhile, Obama’s at NYC’s JTTF commending them for getting Zazi (and doubling down on the data mining, no doubt).
Only if passed. I do not believe that ObamaCo will let anything become law that will hurt the data mining.
Boxturtle (And the GOPers will help him)
Uh, right you are. There’s no way this is going to pass both Houses of Congress as is (I’d bet that Steny Hoyer (D-NSA) will make sure it doesn’t pass the House).
But maybe if it passes HJC (which is a question itself; losing Artur Davis on the Committee makes it more likely, losing Wexler makes it less likely) then it might at least force the Admin to admit it iS data mining.
If we do get that admission the we push that story and say with Obama in the WH the Teabaggers are next their predictable response will help us.
That which is Predictable can be Manipulated!
Spoilsports. How is anybody supposed to make money then?
I’m shocked, shocked:
Very convenient timing for the announcement, isn’t it? And has he been in custody a long time?
At least this time beauty supplies weren’t involved. The story says he tried and failed to get automatic weapons for his attacks on malls.
Btw, I know there are typos in this post and am trying to post links to the docs themselves. But am having technical difficulties.
Citizen emptywheel:
Typos???…TYPOS??!!! My God Sister Marcy, how can we ever forgive you…JEEzus, and that’s what I get for my $50 bucks?!!
Okay, there should be links in the post now.
I’ll do a follow-up with my comments on what they’re trying to do.
And in very much related news, the SDNY Court has ruled that the FBI can continue to keep an NSL gag from several years ago in place.
Private companies (such as Private Investigators or Credit Information Services) that provide this kind of info to Govt. agencies empowered to subpoena them have no incentive to challenge these subpoenas because they (eventually) GET PAID to provide the information.
Looking only at the press release, I’m underwhelmed.
There is a lot of reference to “insuring” and “requiring” that gov do or not do certain things, but zero references to criminal penalties for violation or to enforcement mechanisms or to civil recovery mechanims or to avoiding the stalemating of violations of law and civil liberties being swept into a “national security” privilege and both pre- and post- empted.
I do really like the repeal of retroactive immunity, but what about SOLs that have since run and what about a mechanism for people to get the info they need to show standing? It’s so many words on paper to repeal retroactive immunity after the statutes have run or without providing meaningful access to court review bc of invocations of states secrets and misuse of FOIA exemptions.
I also don’t think this, “Limits the government’s use of information about U.S. persons that is obtained under FISA Amendments Act of 2008 procedures that the FISA Court later determines to be unlawful, while still giving the FISA Court flexibility to allow such information to be used in appropriate cases.” makes all that much sense and there needs to be a provision for an actual adversarial process whereby the FISA amendments can be challenged outside of FISA court – but how you let FISA court determine them to be unlawful — but still use them in “appropriate” cases, is too weird for me, esp since the use is presumably, hopefully, a criminal setting – or else there’s not likely to be much challenge to lawfulness.
I have never been and still and not a fan of an unlimited, unfettered approach to foreign to foreign communications. I’ve never heard anyone ask members of Congress about this, but I have to believe that they are putting telecoms at risk in other countries by saying that the US administrative morass, complete with every element of the criminal class and every corporate anklebiter etc., has full and unfettered access via any US operating telecom, to the conversations of Canadian to Canadian, French to French, British to German, etc. calls. Where is that a power that Americans give to the Executive branch or to all branches of government? And more than that, are telecoms operating in France and Germany and Canada etc. telling the governments there that the telecoms will be handing over all that governments, and its citizens and businesses, communications to some guy named Harry, just because he’s in the Exec branch?
Something like this I’d buy:
but otherwise count me out. I don’t want the Exec branch to spend taxpayer money and staffing time monitoring foreign to foreign non-national security conversations, and I don’t want an unfettered process which is always an invitation to unfettered abuse. YOu never start with a “you can do everything except for things you absolutely for certain sure KNOW involve a communication with one end in the US” and then have no supervision and no penalties and no meaningful accountability in place – and expect an improvment.
I also don’t see any meaningful attempt to close the “use FISA to try to trump up criminal charges where you don’t have enough for a criminal probable cause warrant” loop holes. And the “oversight is having Alberto Gonzales establish minimization procedures to destroy illegally collected info – unless he decided he wants to use it in a criminal proceeding, but if not, bc maybe they’ve decided to disappear someone into a torture program in a US brig or elsewhere, well heck yeah, just let ‘berto destroy the paper trail and call it minimization” approach doesn’t work for me at all.
Oh well, it is what it is.
OT – but Horton has a piece up about the High Court ruling too, and a part of it brought Hayden and bmaz’ post below to mind.
http://harpers.org/archive/2009/10/hbc-90005949
Re: that issue of who can best call what a court will do – apparently Obama bought into Hayden’s view of just letting the CIA decide whether or not to prevent a judicial showdown in the Binyam Mohamed case
.
I’m waiting for Mike to publically write to the CIA and tell them not to trust HIS ass further than they can throw it, what with them being analysts who can read and interpret and all.
It’s hard to decide who to dislike more – lawyer torturers or politician torturers or spook torturers or psychologist torturers or Fox.
Hate them all equally. However, what Fox does is legal so I’m not in favor of prosecuting them.
Boxturtle (Fair and balanced, that’s me!)
I’m with Mary on this. It smells like BS:
(My Bold)
So, let’s pin down how this works:
1. Capture US citizens’ international communications.
2. Put it in a separate database (apparently forever).
3. Then “access, analyze” it and then “disseminate that communication if the communication involves terrorism, if someone’s safety is at stake, or if the government has obtained a court order.”
It’s the Reverse 4th Amendment!
We surveil all of your communications and if we find out you’ve been a bad boy/girl, you’re gonna fookin’ get it!
Shorter HJC: “As long as we got this shit, let’s make a shit sandwich!”
This is not much different than FISA has always been. Michael Hayden didn’t use this authority to find Mihdhar and Hamza, but that was his own choice.
That was why I made this part of my comment:
Shorter HJC: “As long as we got this shit, let’s make a shit sandwich!”
This is institutionalizing the very invasions of privacy and the dissolution of the 4th Amendment that were so objectionable when the Bush/Cheney regime scrapped the Constitution, and when a feckless Congress then later blessed throwing it away with both the Patriot Act and the FISA Amendments Act.
It is one thing to read the “synopses” of these HJC bills.
As a matter of fact, they appear to have been written by the former marketeers for the Ford Pinto and Chevy Vega (You’ll love these cars!).
It is another thing to read the actual proposed bills. The HJC has them listed here:
The FISA Amendments Act of 2009 (20 page PDF)
USA Patriot Amendments Act of 2009 (33 page PDF)
To buttress my previous comment, take a gander at this from page 16 the FISA Amendments Act of 2009:
This turns the “probable cause” requirement of the 4th Amendment completely upside down.
It used to be that one had to have “probable cause” before one could get a warrant to wiretap.
With this proposed law, that “probable cause” requirement of the 4th Amendment just gets scrapped entirely.
Yeah, the 4th Amendment is just nothing anymore. It started being weakened years ago with random traffic stops and random drug tests and now is….. nothing.
And all without another Constitutional Amendment repealing!!! These guys are good!
We lost the arguments over this when we let the discussion become one of “catching the bad guys.” When our framers put in the 4th amendment (as well as many of the others), they did so KNOWING it would make it harder to “catch the bad guys” and yet still supported it because an individual’s right to liberty from undue government intrusion trumped it.
I really believe if the U.S. Bill of Rights were put to a popular vote today, and three months were given to “debate” it, it would lose, and lose big.
Same is probably true for the Constitution itself.
LOL, I might be a “no” vote on that myself.
First thing that would need to go to get my vote would the electoral college. Then I’m seriously thinking the Senate.
To be fair about the Senate, there’s nothing in the Constitution that makes me dislike the Senate, although it does put perhaps too much power in states with no people it’s not that bad; it’s just the filibuster rule, which I still maintain itself is unconstitutional. The constitution is pretty clear on what requires a super majority.
I’ve been told the part that says each house can setup it’s own rules means that. So, if the Senate set up rules that required 90 votes to pass a bill and the President vetoed it, since it would then only need 67 to override it the veto it’s in effect always overridden? So in effect, the Senate could set it’s rules up that totally negates the Presidential veto? I just don’t buy that.
This has already been tested by polling, years ago, and as you guessed, the Bill of Rights lost. Unfortunately, I don’t have a link.
Bob in AZ
Section 6 – Protections for International Communications of Americans
How many Tea Baggers will not like the Obama WH looking at all their Email, mail, phone etc just because they knew talked once on the phone or replied to a fellow right winger’s comment on the net or maybe just have a Shooter post once on their blog?
Michelle Malkin and Fox News better hire an army of lawyers.
At first glance, filligree to a regime that has discovered it can do what it wants with no effective opposition.
Would be a little more impressive if the warrantless provisions from the capitulation bill were repealed, since it’s never been clear why being allowed to proceed for 72 hours without seeking the darned FISA subpoena is such an insupportable shackle.
Reading Dinges’s book has made me very cranky.
John Yoo the subject of the story by New Hours Jim Leher on now CDT.
); I was trying to get on with that information; a good piece, I thought. I am still having login problems; will not let me stay logged in etc.
Whats the subject?
So will this pass is the Question? Does the WH really want it to pass or will they support it publicly but make no effort to push this?
I think that if this bill is killed we tell the Tea Baggers that at some point they will be investigated probably after another Right Wing shooting because of political Pressure.
I think they will believe us when we say that because it is likely and they want to believe Obama is setting up a police state.
Never mind shooting people and carrying guns to Townhalls in public is the kind of behavior Dark Folk do get arrested for in a second by the police, and for the record I support the police on this as a Dark Folk myself. I just wish the law extended to everyone.
Anyway every GOPer that votes against this we use that vote against them and claim that the GOPers who voted against it are secret Obama supporters who want a police state!
Sometimes I am so evil :)
Citizen ThingsComeUndone:
I think yer on to sumpthin there Citizen…right now the threat of domestic terrorism and murder must be drivin’ the Secret Service and FBI bonkers and it ain’t lost on the White House.
True Obama is getting a record number of death threats time to use that Paranoia for our own ends:)
This doesn’t stand an ice cubes chance in hell of passing.
Citizen tbsa:
I’ll betcha a hightest milkshake on that Citizen…and look for the sunset dates to be secured for off-years.
You’re on Norske….
Any chance the Lake can file a freedom of information request to see if the Lake and us commentors were spied on?
I want to frame my being spied on papers to my wall and Brag!:)
David Dayen is upstairs!
Supreme Court Will Hear Uighur Case
Well this, if it passes, sounds much better than what DiFi and Leahy are cooking up. But the devil is always in the details. I’m waiting for the actual language of the bill to be dissected by you and others to see if it lives up to these good-sounding promises.
Thanks!
Bob in AZ
But what will the spooks do to fill the yottabyte storage capacity server farm being built in Utah if they have to cease the currently (beltway) popular data mining (read illegal spying) activities?
It is about time! Let’s see if it has any chance of passing.