Reforming the Patriot Act

The USA PATRIOT Improvement and Reauthorization Act

The reported House-Senate “compromise” on the Patriot Act falls far short of the mark, but there is still time to remedy its worst deficiencies. We applaud the senators and representatives of both parties who have put the leadership on notice that they will not support the conference report without significant revisions.

While the bill offers some modest improvements in the level of disclosure that the government must provide when it engages in domestic surveillance, it fails to make needed improvements to the standards that determine when such surveillance can lawfully be conducted.

The Senate bill provided reasonable standards that would have required the government to show some connection between the records it is seeking under section 215 of the Patriot Act, the so-called “library provision,” and an individual suspected of being a terrorist or spy. The conferees settled for a weaker standard that will do little do allay public concerns. They also agreed to leave this provision in effect for another seven years—far longer than the reasonable four-year sunset approved by both houses.

Even more troubling was the failure of the conferees to tighten the standards for the use of National Security Letters (NSLs) under section 505 of the Patriot Act, which authorizes the FBI to conduct secret, warrantless searches of any records the FBI deems relevant to a national security investigation. Instead of tightening the standards, the conference agreement tightens the screws on the recipients of NSLs, subjecting them to harsh new penalties for noncompliance.

This is particularly perplexing given recent revelations that the government is generating NSLs at a rate of more than 30,000 a year—a hundred-fold increase since the enactment of the Patriot Act. Meanwhile, the judicially-supervised process under section 215 has reportedly been used in only a handful of cases.

Yet the conferees not only failed to reform the standards for the use of NSLs, but they failed even to sunset the provision. Now that we know about the huge growth in the use of NSLs under the Patriot Act, it makes no sense to sunset the seldom-used section 215 while leaving section 505 in place in perpetuity.

We hope that the conferees will reconsider these matters while there is still time. If they cannot reach agreement, it would be better for Congress to reauthorize these controversial provisions for a relatively brief period so that they can be revisited when the next Congress convenes.

Mark D. Agrast is a Senior Fellow at the Center for American Progress.