USA PATRIOT Act - Reauthorizations

Reauthorizations

The USA PATRIOT Act was reauthorized by three bills. The first, the USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005, was passed by both houses of Congress in July 2005. This bill reauthorized provisions of the USA PATRIOT Act and the Intelligence Reform and Terrorism Prevention Act of 2004. It created new provisions relating to the death penalty for terrorists, enhancing security at seaports, new measures to combat the financing of terrorism, new powers for the Secret Service, anti-Methamphetamine initiatives and a number of other miscellaneous provisions. The second reauthorization act, the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, amended the first and was passed in February 2006.

The first act reauthorized all but two of the provisions of Title II that would have expired. Two sections were changed to sunset on December 31, 2009: section 206 — the roving wiretap provision — and section 215, which allowed access to business records under FISA. Section 215 was amended further regardless so as to give greater judicial oversight and review. Such orders were also restricted to be authorized by only the FBI Director, the FBI Deputy Director, or the Executive Assistant Director for National Security, and minimization procedures were specified to limit the dissemination and collection of such information. Section 215 also had a "gag" provision, which was changed to allow the defendant to contact their Attorney. However, the change also meant that the defendant was also made to tell the FBI who he (or she) was disclosing the order to — this requirement was removed by the USA PATRIOT Act Additional Reauthorizing Amendments Act.

On Saturday, February 27, 2010, President Barack Obama signed into law legislation that would temporarily extend for one year, three controversial provisions of the Patriot Act that had been set to expire:

• Authorize court-approved roving wiretaps that permit surveillance on multiple phones.
• Allow court-approved seizure of records and property in anti-terrorism operations.
• Permit surveillance against a so-called lone wolf, a non-U.S. citizen engaged in terrorism who may not be part of a recognized terrorist group.

In a vote on February 8, 2011, the House of Representatives considered a further extension of the Act through the end of 2011. House leadership moved the extension bill under suspension of the rules, which is intended for noncontroversial legislation and requires two-thirds majority to pass. After the vote, the extension bill did not pass; 277 members voted in favor, which was less than the 290 votes needed to pass the bill under suspension of the rules. Without an extension, the Act was set to expire on February 28, 2011. However, it eventually passed, 275-144.

As NSL provisions of the USA PATRIOT Act had been struck by the courts the reauthorization Act amended the law in an attempt to make them lawful. It provided for judicial review and the legal right of a recipient to challenge the validity of the letter. The reauthorization act still allowed NSLs to be closed and all evidence to be presented in camera and ex parte. Gag provisions were maintained, but were not automatic. They only occurred when the Deputy Assistant Director of the FBI or a Special Agent in Charge in a Bureau field office certified that disclosure would result in "a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person". However, should there be no non-disclosure order, the defendant can disclose the fact of the NSL to anyone who can render them assistance in carrying out the letter, or to an attorney for legal advice. Again, however, the recipient was ordered to inform the FBI of such a disclosure. Because of the concern over the chilling effects of such a requirement, the Additional Reauthorization Amendments Act removed the requirement to inform the FBI that the recipient spoke about the NSL to their Attorney. Later, the Additional Reauthorization Amendments Act excluded libraries from receiving NSLs, except where they provide electronic communications services. The reauthorization Act also ordered the Attorney General submit a report semi-annually to the House and Senate Judiciary Committees, the House and Senate Intelligence Committees and the House Committee on Financial Services and the Senate Committee on Banking, Housing, and Urban Affairs on all NSL request made under the Fair Credit Reporting Act.

Changes were made to the roving wiretap provisions of the USA PATRIOT Act. Applications and orders for such wiretaps must describe the specific target of the electronic surveillance if the identity of the target is not known. If the nature and location of each of the facilities or places targeted for surveillance is not known, then after 10 days the agency must provide notice to the court. The notice must include the nature and location of each new facility or place at which the electronic surveillance was directed. It must also describe the facts and circumstances relied upon by the applicant to justify the applicant's belief that each new surveillance place or facility under surveillance is or was being used by the target of the surveillance. The applicant must also provide a statement detailing any proposed minimization procedures that differ from those contained in the original application or order, that may be necessitated by a change in the facility or place at which the electronic surveillance is directed. Applicants must detail the total number of electronic surveillances that have been or are being conducted under the authority of the order.

Section 213 of the USA PATRIOT Act was modified. Previously it stated that delayed notifications would be made to recipients of "sneak and peek" searches in a "reasonable period". This was seen as unreasonable, as it was undefined and could potentially be used indefinitely. Thus, the reauthorization act changed this to a period not exceeding 30 days after the date of the execution of the search warrant. Courts were given the opportunity to extend this period if they were provided good cause to do so. Section 213 states that delayed notifications could be issued if there is "reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result". This was criticized, particularly by the ACLU, for allowing potential abuse by law enforcement agencies and was later amended to prevent a delayed notification "if the adverse results consist only of unduly delaying a trial.". On September 26, 2007 the Sneak and Peak provisions of the USA PATRIOT ACT were struck down, however, by an Oregon US District Court in an opinion indicating the provisions gave too much power to the Executive in the face of the 4th Amendment.

The reauthorization act also legislates increased congressional oversight for emergency disclosures by communication providers undertaken under section 212 of the USA PATRIOT Act. The duration of FISA surveillance and physical search orders were increased. Surveillance performed against "lone wolf terrorists" under section 207 of the USA PATRIOT Act were increased to 120 days for an initial order, while pen registers and trap and trace device extensions under FISA were increased from 90 days to a year. The reauthorization act also increased congressional oversight, requiring a semi-annual report into physical searches and the use of pen registers and trap and trace devices under FISA. The "lone wolf terrorist" provision (Section 207) was a sunset provision that also was to have expired, however this was enhanced by the Intelligence Reform and Terrorism Prevention Act of 2004. The reauthorization act extended the expiration date to December 31, 2009. The amendment to material support law done in the Intelligence Reform and Terrorism Prevention Act was also made permanent. The definition of terrorism was further expanded to include receiving military-type training from a foreign terrorist organization and narcoterrorism. Other provisions of the reauthorization act was to merge the law outlawing train wrecking (18 U.S.C. § 992) and the law outlawing attacks on mass transportation systems (18 U.S.C. § 1993) into a new section of Title 18 of the U.S. Code (18 U.S.C. § 1992) and also to criminalize the act of planning a terrorist attack against a mass transport system. Forfeiture law was further changed and now assets within U.S. jurisdiction will be seized for illegally trafficking in nuclear, chemical, biological or radiological weapons technology or material, if such offense is punishable under foreign law by death or imprisonment for a term exceeding one year. Alternatively, this applies if similar punishment would be so punishable if committed within the U.S. A sense of Congress was further expressed that victims of terrorism should be entitled to the forfeited assets of terrorists.