[Congressional Record Volume 152, Number 10 (Wednesday, February 1, 2006)]
[Extensions of Remarks]
[Pages E63-E66]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    HIGHLIGHTS OF CIVIL LIBERTY SAFEGUARDS CONTAINED IN PATRIOT ACT 
                           CONFERENCE REPORT

                                 ______
                                 

                    HON. F. JAMES SENSENBRENNER, JR.

                              of wisconsin

                    in the house of representatives

                      Wednesday, February 1, 2006

  Mr. SENSENBRENNER. Mr. Speaker, I would like to include the following 
House Judiciary Committee press releases that highlight important civil 
liberty safeguards that are contained in the PATRIOT Act conference 
report.

       PATRIOT Act Conference Report Civil Liberty Safeguard #1--
     Requiring High-Level Approval and Additional Reporting to 
     Congress for Section 215 Requests for Sensitive Information 
     Such as Library or Medical Records:
       Section 215 of the PATRIOT Act authorizes the Director of 
     the Federal Bureau of Investigation or a designee of the 
     Director to apply to the Foreign Intelligence Surveillance 
     Act (FISA) Court for an order requiring the production of any 
     tangible things (including books, records, papers, documents, 
     and other items) for a foreign terrorism or spy 
     investigation. This authority provides counterterrorism and 
     law enforcement officials a helpful tool to uncover what 
     activities suspected terrorists or spies are engaged in. The 
     Department of Justice testified in April 2005 to the House 
     Judiciary Committee that a Section 215 order had not been 
     used to request sensitive information such as library, 
     bookstore, medical, or gun records and no evidence has been 
     presented to demonstrate otherwise. Nonetheless, some have 
     raised concerns that this authority could be abused by mid-
     level officials to seek sensitive categories of records about 
     law-abiding Americans.
       To address these concerns, the conference report provides 
     that when the documents sought relate to certain sensitive 
     categories of records (such as library, bookstore, tax 
     return, firearms sales, educational, and medical records), 
     only the FBI Director, Deputy Director, or Official-in-Charge 
     of Intelligence may approve the application before it can be 
     submitted to the FISA court. Without the personal approval of 
     one of these 3 officials, the 215 order for these sensitive 
     categories of records may not be issued. Additionally, the 
     conference report establishes enhanced reporting requirements 
     to Congress regarding the use of Section 215, including a 
     breakdown of its use to obtain library, medical, educational, 
     and other sensitive types of records in order to further 
     protect this authority from possibly being abused. These 
     civil liberty safeguards contained in the conference report 
     do not exist under current law.
       PATRIOT Act Conference Report Civil Liberty Safeguard #2--
     Statement of Facts Showing Relevance to a Terrorism or 
     Foreign Spy Investigation Required for Section 215 Requests:
       Section 215 of the PATRIOT Act authorizes the Director of 
     the Federal Bureau of Investigation or a designee of the 
     Director to apply to the Foreign Intelligence Surveillance 
     Act (FISA) Court for an order requiring the production of any 
     tangible things (including books, records, papers, documents, 
     and other items) for a foreign terrorism or spy 
     investigation. This authority provides counter-terrorism and 
     law enforcement officials a helpful and less invasive tool to 
     both uncover what activities suspected terrorists or spies 
     are engaged in and clear innocent people suspected of 
     terrorism or spying. Without Section 215 authority, counter-
     terrorism and law enforcement officials seeking to discover 
     whether a person is involved in

[[Page E64]]

     terrorism or spying activity would be forced to use more 
     invasive investigative techniques such as obtaining a search 
     warrant. Current law only requires that an application for a 
     Section 215 order state that the requested records are sought 
     for an authorized investigation to collect foreign terrorism 
     or spy information.
       The conference report requires that a Section 215 
     application must include a statement of facts demonstrating 
     that the records sought are ``relevant'' to an authorized 
     investigation to obtain terrorism or foreign intelligence 
     information. This statement of facts requirement contains 
     language offered by Senator Leahy. This statement of facts 
     civil liberty safeguard contained in the conference report 
     does not exist under current law. In addition, the 
     conference report maintains the specific prohibition that 
     the requested information not concern a U.S. person unless 
     it is to protect against international terrorism or spying 
     activities.
       PATRIOT Act Conference Report Civil Liberty Safeguard #3--
     Explicitly Allowing a FISA Court Judge to Deny or Modify a 
     Section 215 Request:
       Under current law, upon receiving the Section 215 
     application, the FISA Court judge must approve or modify the 
     order; the current law does not include specific authority 
     for the court to deny an application. The PATRIOT Act 
     conference report explicitly provides a FISA Court judge the 
     discretion to not only approve or modify a Section 215 
     application, but also to deny an application. This civil 
     liberty safeguard contained in the conference report does not 
     exist under current law.
       PATRIOT Act Conference Report Civil Liberty Safeguard #4--
     Requiring Minimization Procedures to Limit Retention and 
     Dissemination of Information Obtained About U.S. Persons From 
     Section 215 Requests:
       In order to address concerns that information sought in a 
     Section 215 order might be unnecessarily retained or 
     disseminated, the PATRIOT Act conference report requires that 
     the Attorney General create minimization procedures for the 
     retention and dissemination of this data and that the FBI use 
     these procedures. Specifically, the A.G. must establish 
     minimization procedures to minimize the retention, and 
     dissemination, of nonpublicly available information 
     concerning non-consenting United States persons consistent 
     with the need of the United States to obtain, produce, and 
     disseminate foreign intelligence information. This civil 
     liberty provision provides another safeguard to ensure 
     information about innocent U.S. persons is not kept or used 
     in nefarious or inappropriate ways. This civil liberty 
     safeguard is not contained in current law and was requested 
     by Senator Leahy.
       PATRIOT Act Conference Report Civil Liberty Safeguard #5--
     Explicitly Providing for a Judicial Challenge to a Section 
     215 Order:
       Current law requires judicial review before a Section 215 
     order can be issued. Specifically, the FISA Court is required 
     to review all applications before a Section 215 order is 
     approved. However, current law does not provide a judicial 
     review process after a 215 order has been issued. The pending 
     PATRIOT Act conference report explicitly establishes a 
     judicial review process after the 215 order has been issued 
     to allow the recipient of a 215 order to challenge the order 
     before the FISA Court. The FISA Court may quash a Section 215 
     request if it does not meet the requirements of the statute 
     or is otherwise unlawful. This civil liberty safeguard 
     contained in the conference report does not exist under 
     current law.
       PATRIOT Act Conference Report Civil Liberty Safeguard #6--
     Explicitly Clarifying that a Recipient of a Section 215 Order 
     May Disclose Receipt to an Attorney or Others Necessary to 
     Comply with or Challenge the Order:
       Current law prohibits the recipient of a 215 order from 
     disclosing the receipt of such an order except to those 
     necessary to comply with the order. This is done for 2 main 
     reasons: 1) fear of tipping off terrorists or spies that they 
     are being investigated; and 2) irreparably harming the 
     reputations of innocent people by publicly disclosing their 
     activities were investigated because of terrorism or spying 
     links. Current law is silent as to whether a 215 order 
     recipient may disclose the receipt of such an order to an 
     attorney to comply with the order. The pending PATRIOT Act 
     conference report clarifies this issue by stating explicitly 
     that the recipient of a 215 order may disclose receipt to an 
     attorney or others necessary to comply with or challenge the 
     order. This civil liberty safeguard contained in the 
     conference report does not exist under current law.
       PATRIOT Act Conference Report Civil Liberty Safeguard #7--
     Requiring Public Reporting of the Number of Section 215 
     Orders:
       On April 6, 2005, Attorney General Alberto Gonzales 
     testified before the House Judiciary Committee that as of 
     March 30, 2005, the FISA Court had approved the Justice 
     Department's request for a Section 215 order 35 times. 
     However, under current law, the number of Section 215 orders 
     is not required to be made public. At the request of Senator 
     Leahy and other Senate Democratic conferees, the PATRIOT Act 
     conference report requires the Justice Department to report 
     to the public annually the aggregate number of Section 215 
     applications submitted, approved, modified, and denied. 
     Despite the concerns of some that this public reporting 
     requirement unnecessarily informs America's enemies of the 
     sources and methods being used to thwart terrorism and 
     spying, the conference reports includes this civil liberty 
     safeguard to assuage any concerns that the Section 215 
     authority is being abused. This civil liberty safeguard 
     contained in the conference report does not exist under 
     current law.
       PATRIOT Act Conference Report Civil Liberty Safeguard #8--
     Requiring the Justice Department's Independent Inspector 
     General to Conduct an Audit of Each Justice Department Use of 
     Section 215 Orders:
       The PATRIOT Act conference report provides additional 
     public information and congressional oversight by requiring 
     the Justice Department's independent Inspector General to 
     conduct an audit for each Justice Department use of Section 
     215 orders. These audits will be compiled into two Inspector 
     General public reports with classified annexes. This civil 
     liberty safeguard contained in the conference report does not 
     exist under current law.
       PATRIOT Act Conference Report Civil Liberty Safeguard #9--
     Explicitly Providing for a Judicial Challenge to a National 
     Security Letter (NSL):
       Current law does not specify that an NSL can be challenged 
     in court and provides no process for challenging an NSL. The 
     conference report provides explicit authority to challenge in 
     court an NSL under all existing statutes authorizing NSLs. 
     Specifically, the conference report provides that the 
     recipient of an NSL may petition for an order modifying or 
     setting aside the NSL request in the U.S. district court 
     for the district where the recipient does business or 
     resides. This civil liberty safeguard is stronger than the 
     Senate-passed bill, which only addressed one of the NSL 
     statutes, does not exist under current law, and was 
     written by Rep. Jeff Flake (R-Ariz.).
       Originally created by a Democrat-led Congress and signed 
     into law by President Carter, NSLs are a long-standing tool 
     by which the FBI and other appropriate federal law 
     enforcement officials request, for sensitive foreign spying 
     or international terrorism investigations, subscriber 
     information and toll billing records of a wire or electronic 
     communication service provider, such as a phone company or 
     AOL.
       PATRIOT Act Conference Report Civil Liberty Safeuard #10--
     Explicitly Clarifying: that a Recipient of a National 
     Security Letter (NSL) May Disclose Receipt to an Attorney or 
     Others Necessary to Comply with or Challenge the Order:
       As NSLs may only be used in highly sensitive international 
     terrorism or foreign espionage investigations with national 
     security implications, current law prohibits the recipient of 
     an NSL from disclosing the receipt of such an order. Current 
     law is silent as to whether an NSL recipient may disclose the 
     receipt of such an order to an attorney to comply with or 
     challenge the order. The pending PATRIOT Act conference 
     report clarifies this issue by stating explicitly that the 
     recipient of an NSL may disclose receipt to an attorney or 
     others necessary to comply with or challenge the order. This 
     civil liberty safeguard contained in the conference report 
     does not exist under current law and was written by Rep. Jeff 
     Flake (R-Ariz.).
       PATRIOT Act Conference Report Civil Liberty Safeguard #11--
     Providing that a Nondisclosure Order Does Not Automatically 
     Attach to a National Security Letter (NSL):
       Current law automatically prohibits the recipient of an NSL 
     from disclosing receipt of it. The conference report amends 
     the law so that a nondisclosure order does not automatically 
     attach to an NSL. Instead, a nondisclosure requirement will 
     attach to an NSL only upon a certification by the government 
     that disclosure could cause one of the harms specified in the 
     conference report, such as endangering a witness or 
     threatening national security. This civil liberty safeguard 
     does not exist in current law and was written by Rep. Jeff 
     Flake (R-Ariz.).
       PATRIOT Act Conference Report Civil Liberty Safeguard #12--
     Providing Explicit Judicial Review of a Nondisclosure 
     Requirement to a National Security Letter (NSL):
       Current law does not allow the recipient of an NSL to 
     challenge a nondisclosure order attached to the NSL. The 
     conference report changes this by explicitly providing for 
     judicial review of a nondisclosure requirement to an NSL. The 
     NSL recipient may challenge the nondisclosure requirement in 
     the U.S. district court for the district in which 
     the recipient does business or resides. This civil liberty 
     safeguard does not exist in current law and was written by 
     Rep. Jeff Flake (R-Ariz.).
       PATRIOT Act Conference Report Civil Liberty Safeguard #13--
     Requiring Public Reporting of the Number of National Security 
     Letters (NSLs):
       At the request of Senator Leahy and other Senate Democratic 
     conferees, the PATRIOT Act conference report includes--for 
     the first time--public reporting on the aggregate number of 
     NSLs requested for information about U.S. persons. Despite 
     the concerns of some that this public reporting requirement 
     unnecessarily informs America's enemies of the sources and 
     methods being used to thwart terrorism and spying, the 
     conference reports includes this civil liberty safeguard to 
     assuage any concerns that the NSL authority is being abused. 
     This civil liberty safeguard contained in the conference 
     report does not exist under current law.
       PATRIOT Act Conference Report Civil Liberty Safeguard #14--
     Requiring the Justice Department's Independent Inspector 
     General to Conduct Two Audits of the Use of National Security 
     Letters (NSLs):
       The PATRIOT Act conference report provides additional 
     public information and congressional oversight by requiring 
     the Justice Department's independent Inspector General to 
     conduct two audits on the use of NSLs

[[Page E65]]

     during the years 2003--2006. These audits will be compiled 
     into two Inspector General public reports with classified 
     annexes. This civil liberty safeguard contained in the 
     conference report does not exist under current law.
       PATRIOT Act Conference Report Civil Liberty Safeguard #15--
     Requiring Additional Reporting to Congress by the Justice 
     Department on Use of National Security Letters (NSLs):
       The PATRIOT Act conference report enhances congressional 
     oversight over the use of NSLs by requiring additional 
     classified reporting to Congress on the use of NSL 
     authorities. Specifically, the conference report requires the 
     House and Senate Judiciary Committees to receive all 
     classified reports regarding use of NSLs; currently these 
     committees only receive classified reports under one of the 
     five statutes authorizing NSLs.
       PATRIOT Act Conference Report Civil Liberty Safeguard #16--
     Requiring the Justice Department to Re-Certify that 
     Nondisclosure of a National Security Letter (NSL) is 
     Necessary:
       The PATRIOT Act conference report explicitly allows an NSL 
     recipient to challenge a nondisclosure requirement in U.S. 
     district court. If an NSL recipient challenges the 
     prohibition on disclosure more than a year after the NSL is 
     issued, the Justice Department must re-certify that 
     nondisclosure is necessary, or else the nondisclosure 
     requirement lapses. This civil liberty safeguard contained in 
     the conference report does not exist under current law.
       PATRIOT Act Conference Report Civil Liberty Safeguard #17--
     Narrowing the Deference Given to the Justice Department on a 
     National Security Letter (NSL) Nondisclosure Certification:
       The PATRIOT Act conference report provides greater judicial 
     discretion by narrowing the deference given to certifications 
     by the Justice Department on NSL nondisclosure requirements. 
     Like the Senate-passed version, the conference report 
     provides an additional level of deference if an NSL 
     nondisclosure certification is made on the grounds that 
     disclosure may endanger national security or diplomatic 
     relations. At the request of Senator Leahy, this heightened 
     degree of deference is only provided to certifications made 
     by a few Senate-confirmed officials at the time the 
     nondisclosure petition is filed. This civil liberty safeguard 
     contained in the conference report does not exist under 
     current law.
       PATRIOT Act Conference Report Civil Liberty Safeguard #18--
     Requiring a Report to Congress on Any Use of Data-Mining: 
     Programs by the Justice Department:
       Data-mining programs take vast amounts of information and 
     try to utilize it for specific purposes such as identifying a 
     group with similar features. These programs can be helpful in 
     ``connecting the dots'' and are becoming more useful as a 
     tool to bolster homeland security. Congress wants to ensure 
     that agencies using data-mining programs take all necessary 
     steps to protect privacy and the unauthorized dissemination 
     of information.
       The PATRIOT Act conference report enhances congressional 
     oversight of data-mining programs by requiring the Justice 
     Department to report to Congress on the use or development of 
     any of these programs by the Justice Department. This report 
     will help inform Members of Congress of the civil liberty 
     protections that are built into--or should be built into--
     these Justice Department data-mining programs. This new civil 
     liberty safeguard contained in the PATRIOT Act conference 
     report does not exist in current law and was written by Reps. 
     Howard Berman (D-Calif.) and William Delahunt (D-Mass.).
       PATRIOT Act Conference Report Civil Liberty Safeguard #19--
     Requiring Notice Be Given on Delayed-Notice Search Warrants 
     Within 30 Days of the Search:
       Prior to the enactment of the PATRIOT Act in 2001, the U.S. 
     Courts had authorized delayed notice search warrants under 
     limited circumstances. For these special situations, the 
     PATRIOT Act adopted the Courts' practice of requiring law 
     enforcement to provide notice within a reasonable amount of 
     time after the search has been carried out. Some were 
     concerned that using a ``reasonable amount of time'' standard 
     could allow abuse. Thus, the PATRIOT Act reauthorization 
     conference report narrows and clarifies this standard by 
     providing a Court the discretion to delay notice for up to 30 
     days after the search is executed. This new conference report 
     civil liberty safeguard is not found in current law.
       Notice has been delayed in only rare cases. As of January 
     31, 2005, the Justice Department has requested delayed-notice 
     search warrants approximately 155 times since passage of the 
     PATRIOT Act on October 26, 2001 out of the tens of thousands 
     of search warrants authorized each year. These warrants make 
     up fewer than 1 in 500 search warrants obtained in that 
     period. Delayed-notice search warrants have been a valuable 
     tool used by law enforcement for decades. Like all criminal 
     search warrants, a delayed-notice search warrant is issued by 
     a federal judge only upon a showing that there is probable 
     cause to believe that a crime has been or will be committed 
     and that the property sought or seized constitutes evidence 
     of this criminal offense. Notice is delayed only to protect 
     an on-going investigation and the safety of the American 
     public. Not delaying notice could allow a terrorist or 
     criminal to flee the country, destroy evidence about his 
     activity, alert associates to go into hiding, or even kill 
     witnesses who could implicate the individual.
       PATRIOT Act Conference Report Civil Liberty Safeguard #20--
     Limiting Delayed-Notice Search Warrants Extensions to 90 Days 
     or Less:
       Like the versions passed by the House and the Senate, the 
     PATRIOT Act conference report narrows and clarifies the 
     permissible extension period by providing a Court the 
     discretion to extend the delay of notice for up to 90 days 
     except under exceptional circumstances. This new conference 
     report civil liberty safeguard is not found in current law.
       PATRIOT Act Conference Report Civil Liberty Safeguard #21--
     Requiring an Updated Showing of Necessity in Order to Extend 
     the Delay of Notice of a Search Warrant:
       To ensure that a Court considering extending a delay of 
     notice has the best and most up-to date information, the 
     PATRIOT Act conference report requires an updated show of 
     necessity by the applicant in order to extend the delay of 
     notice of a search warrant. This new conference report civil 
     liberty safeguard is not found in current law.
       PATRIOT Act Conference Report Civil Liberty Safeguard #22--
     Requiring Annual Public Reporting on the Use of Delayed-
     Notice Search Warrants:
       To assuage concerns that delayed-notice search warrants 
     could be abused, the PATRIOT Act conference report requires 
     public reporting on the use of these search warrants. 
     Specifically, the annual public report will include the 
     ``number of applications for warrants and extensions of 
     warrants authorizing delayed notice, and the number of such 
     warrants and extensions granted or denied during the 
     preceding fiscal year.'' This new conference report civil 
     liberty safeguard is not found in current law.
       PATRIOT Act Conference Report Civil Liberty Safeguard #23--
     Requiring Additional Specificity from an Applicant Before 
     Roving Surveillance May be Authorized:
       In an age of disposable cell phones, ``roving'' wiretaps 
     are a reasonable and common-sense updating of investigative 
     techniques to account for technological advances. A 
     ``roving'' wiretap follows the target rather than just a 
     single phone or communications device. The PATRIOT Act 
     conference report addresses concerns about vagueness in 
     applications for ``roving'' wiretaps in foreign spying and 
     terrorism investigations by requiring additional 
     specificity in these applications in order for a Foreign 
     Intelligence Surveillance Act (FISA) Court judge to 
     consider authorizing a ``roving'' wiretap. This civil 
     liberty safeguard is not included in current law.
       Congress has authorized criminal wiretaps for decades as an 
     effective crime-fighting tool. Because of technological 
     advances, including the use of cell phones, in 1986 Congress 
     authorized ``roving'' wiretaps in criminal cases that allowed 
     for the surveillance to target a person rather than a 
     specific phone or communications device. However, prior to 
     the PATRIOT Act, this authority did not exist for 
     international spying or terrorism cases; thus, for these 
     cases the government had to return to the FISA Court and 
     apply for a new wiretap every time the suspected spy or 
     terrorist used a different phone or communications device. 
     This costly, cumbersome, and time-consuming requirement 
     served as a major impediment in foreign spying and terrorism 
     investigations. The PATRIOT Act extended the ``roving'' 
     wiretap authority to international spying and terrorism cases 
     by allowing a FISA Court judge to authorize a ``roving'' 
     wiretap provided the applicant demonstrates there is probable 
     cause to believe the target is a foreign spy or terrorist.
       PATRIOT Act Conference Report Civil Liberty Safeguard #24--
     Requiring Court Notification Within 10 Days of Conducting 
     Surveillance on a New Facility Using a ``Roving'' Wiretap:
       The PATRIOT Act conference report addresses concerns the 
     ``roving'' wiretap authority could be abused by requiring the 
     investigators to inform the Foreign Intelligence Surveillance 
     Act (FISA) Court within 10 days when the ``roving'' 
     surveillance authority is used to target a new facility.
       PATRIOT Act Conference Report Civil Liberty Safeguard #25--
     Requiring Ongoing FISA Court Notification of the Total Number 
     of Places or Facilities Under Surveillance Using a ``Roving'' 
     Wiretap:
       The PATRIOT Act conference report enhances judicial 
     oversight to address any concerns that the ``roving'' wiretap 
     authority could be abused. Specifically, the conference 
     report requires the Foreign Intelligence Surveillance Act 
     (FISA) Court to be informed on an ongoing basis of the total 
     number of places or facilities under surveillance using a 
     ``roving'' wiretap authority.
       PATRIOT Act Conference Report Civil Liberty Safeguard #26--
     Requiring Additional Specificity in a FISA Court Judge's 
     Order Authorizing a ``Roving'' Wiretap:
       The PATRIOT Act conference report addresses concerns about 
     vagueness about the target in a Foreign Intelligence 
     Surveillance Act (FISA) Court judge's order authorizing a 
     ``roving'' wiretap in foreign spying and terrorism 
     investigations by requiring additional specificity. The 
     conference report requires the FISA Court judge's order 
     authorizing a ``roving'' wiretap to specify ``the identity, 
     if known, of the specific target'' of the surveillance. 
     Current law requires ``the identity, if known, or a 
     description of the target.'' This new civil liberty safeguard 
     is not included in current law.
       PATRIOT Act Conference Report Civil Liberty Safeguard #27--
     Providing a Four-Year Sunset on FISA ``Roving'' Wiretaps:
       Despite no evidence that the FISA ``roving'' wiretap 
     authority has been abused, the PATRIOT Act conference report 
     aggressively

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     attempts to avoid any potential abuse of FISA ``roving'' 
     wiretaps by providing a four-year sunset of this authority. 
     This civil liberty safeguard will ensure Congress revisits 
     this authority in four years.

                          ____________________