Senate Judiciary Committee Approves Surveillance Bill

March 10, 2011. The Senate Judiciary Committee (SJC) amended and approved S 193 [LOC | WW], the "USA PATRIOT Act Sunset Extension Act of 2011". The vote on approval was 10-7.

Last month, the Congress passed, and President Obama signed, HR 514 [LOC | WW], the "FISA Sunsets Extension Act of 2011". That brief bill simply extended statutory sunsets for lone terrorist, business records, and roving wiretap authority to May 27, 2011. For explanations of these three provisions, see story titled "House and Senate Extend Expiring Surveillance Provisions" in TLJ Daily E-Mail Alert No. 2,054, March 3, 2010.

Sen. Patrick Leahy (D-VT), the Chairman of the SJC, introduced S 193 on January 26, 2011. It addresses these three statutory sunsets in Section 2. However, it is a lengthy bill that also addresses related issues. It is similar to a bill in the 111th Congress, S 1692 [LOC | WW], also titled the "USA PATRIOT ACT Sunshine Extension Act", which the SJC approved on October 8, 2009.

The Department of Justice (DOJ) implemented some of the provisions in S 1692 administratively. See, story titled "Holder Writes Sen. Leahy Regarding Surveillance" in TLJ Daily E-Mail Alert No. 2,177, December 13, 2010. S 193 would have the effect of codifying and making permanent some of these administrative actions.

S 193 would also make changes to existing statutory law. For example, it would create a sunset for national security letter (NSL) authority. The DOJ's Federal Bureau of Investigation (FBI) has a history of abusing NSL authority. See, stories titled "DOJ IG Releases Reports on Use of NSLs and Section 215 Authority" in TLJ Daily E-Mail Alert No. 1,551, March 13, 2007; "DOJ Inspector General Releases Second Report on FBI Misuse of National Security Letters" in TLJ Daily E-Mail Alert No. 1,730, March 12, 2008; and "Another DOJ Inspector General Report Finds FBI Misconduct in Obtaining Phone Records" in TLJ Daily E-Mail Alert No. 2,037, January 20, 2010.

Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, advocated simply extending the three expiring authorities, without further provisions.

Sen. Jon Kyl (R-AZ) said that Sen. Harry Reid (D-NV), the Senate Majority Leader, has agreed to give at least a week of floor time to this bill. Sen. Kyl also said that amendments will be offered to provide "additional law enforcement authorities".

That is, while the bill currently restricts governmental authority, if it comes to the Senate floor, there will be amendments that would "grant new authorities".

Library and Bookseller Records. The SJC approved an amendment [2 pages in PDF] offered by Sen. Leahy by a vote of 11-7 that pertains to Section 215 business records. It was a straight party line vote.

Section 215 of the 2001 USA PATRIOT Act rewrote Section 501 of the Foreign Intelligence Surveillance Act (FISA), which is codified at 50 U.S.C. 1861. This is the section of the FISA that provides for "Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations".

This 215/501/1861 authority enables the FBI to obtain from a judge or magistrate an order requiring the production business records. While the statute does not expressly include library or bookseller records, it is not disputed that they are covered.

This section further provides that if the government submits an application to the court that states that there are "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation", then the "judge shall enter an ex parte order as requested". This is a very low standard, and the judge is left with no discretion.

The bill as introduced provides that if the government seeks library records, the government must make a greater showing. The just approved amendment expands this language to also include bookseller records. As amended, it reads, "if the records sought contain bookseller records, or are from a library and contain personally identifiable information about a patron of the library ..."

The just approved amendment further provides that "bookseller records" means "transactional records reflecting the purchase (including subscription purchase) or rental of books, journals, or magazines, whether in digital form or in print, of an individual or entity engaged in the sale or rental of books, journals, or magazines". (Parentheses in original.)

Sen. Grassley argued that this amendment "could hinder investigations". He stated that terrorists could increase the workload of investigators "simply by buying a book".

Sen. Orrin Hatch (R-UT), who also opposed the amendment, noted that one can buy online from Amazon the book titled "The Anarchists Cookbook", and other "how to guides for would be jihadists".

Sen. Kyl argued in opposition to the amendment that Section 215 orders merely enable the FBI to conduct preliminary investigation, and to "connect the dots".

Roving Wiretaps. The SJC also approved an amendment [PDF] offered by Sen. Richard Durbin (D-IL) and Sen. Mike Lee (R-UT) by a vote of 11-6 that pertains to FISA orders for electronic surveillance. Sen. Durbin said that this amendment would require the government to describe with particularity the target of a roving wiretap.

Section 206 of the 2001 USA PATRIOT Act amended Section 105(c)(2)(B) of the FISA, which is codified at 50 U.S.C. 1805, to have the effect of allowing the court to authorize roving wiretaps.

This roving wiretap authority means that law enforcement officials do not have to file multiple applications when a terrorist disposes of phone after phone or shifts from one communication device to another. It also means that the government does not have to identify an individual who is a target of surveillance.

Section 1805(c)(1)(A) currently provides that "An order approving an electronic surveillance under this section shall specify ... the identity, if known, or a description of the specific target of the electronic surveillance ..." The amendment would add the words "with particularity" after the word "description".

Other Amendments. The SJC also approved an amendment [1 page in PDF] offered by Sen. Leahy by unanimous consent that adjusts the extensions to reflect the temporary three month extension adopted in February.

The SJC also approved a technical amendment [1 page in PDF] offered by Sen. Sheldon Whitehouse (D-RI) by voice vote regarding NSL gag orders.

The SJC also approved an amendment [2 pages in PDF] offered by Sen. Charles Grassley (R-IA) that provides the death penalty for five enumerated terrorist crimes. Sen. Leahy argued that this is a surveillance bill, not a criminal penalties bill. However, a motion to table it failed, and it was then approved by voice vote.

The SJC tabled an amendment [PDF] offered by Sen. John Cornyn (R-TX) by a vote of 10-8 that would have amended immigration law to provide that an administrative terrorism determination is a bar to good moral behavior.

The SJC began its mark up of this bill on February 17. At that time it approved an amendment [2 pages in PDF] offered by Sen. Leahy, and another amendment [2 pages in PDF] offered by Sen. Dianne Feinstein (D-CA).