Patriot Act may be renewed without reforms

Last-minute deal calls for a vote to renew expiring portions of the law. But six senators could block it on privacy grounds.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
6 min read
A frenzy of last-minute negotiations over the Patriot Act, conducted behind closed doors as a Dec. 31 expiration date nears, has yielded a four-year renewal of the law and no substantial reforms.

Sen. Arlen Specter, the Pennsylvania Republican who has been a point person during this year's debate over the fate of the complex and controversial law, said Wednesday that he and his counterparts in the House of Representatives have agreed to a deal that could pave the way for reauthorization of the Patriot Act by next week.

After reaching an impasse with House Republicans who held out for a longer seven-year renewal, Specter said he asked President Bush to intervene. "The vice president helped out a little yesterday and after a lot of haggling, I signed the conference report at 9:00 p.m.," Specter said in a statement sent to CNET News.com. "They brought it to my house."

But a band of six Democratic and Republican senators--who lodged strong objections to the draft conference report prepared last month--is likely to block a vote unless their concerns about privacy and overly broad surveillance are addressed. Sen. Russ Feingold, a Wisconsin Democrat and member of the group, said through a spokesman on Wednesday that he had not reviewed the final text.

Patriot Act's e-surveillance

Only 16 sections of the massive law, enacted in October 2001, are set to expire on Dec. 31. Five deal with electronic surveillance and computer crime:

Sec. 202: Computer hacking is a "predicate offense" permitting police to seek certain types of wiretaps.

Sec. 203: Federal police can share information gleaned from a wiretap or Carnivore-like surveillance device with spy agencies. Previously, there was no explicit authorization for such data sharing.

Sec. 212: Internet providers and other communications providers can divulge information to police more readily. Specifically, customer records and other data may be legally handed over to police in an emergency.

Sec. 215: Secret court orders can be used to obtain records or "tangible items" from any person or business if the FBI claims a link to terrorism. The unlucky recipient of the secret order is gagged; disclosing its existence is punishable by a prison term.

Sec. 217: Computer service providers may eavesdrop on electronic trespassers legally. Police can be authorized to "listen in" on what's happening on the provider's network.

Of the 16 portions of the massive law that are set to expire, five deal with electronic surveillance and computer crime. Those permit secret court orders that the FBI can use to obtain business records; authorize more information sharing between Internet providers and police; and list computer hacking as an offense granting increased eavesdropping authority.

One important but unanswered question is how much support the group of six senators can muster among their colleagues. At a press conference last month, the group called for reforming portions of the Patriot Act that deal with library and other business record acquisitions, secret "National Security Letters" that have been used against Internet service providers, and delayed search warrants that permit police to secretly enter a home and notify the person weeks or months later.

Specter's office did not make the text of the final bill available. But according to interviews with staffers and lobbyists, not one of those three changes has been made.

Tim Edgar, a legislative counsel for the American Civil Liberties Union, said Specter's announcement was "designed to put a lot of pressure on the Senate to go along with an extremely flawed conference report. We'll see if they bite."

The group of six includes Democrats Richard Durbin of Illinois and Kenneth Salazar of Colorado; and Republicans Lisa Murkowski of Alaska; Larry Craig of Idaho; and John Sununu of New Hampshire. They backed a Patriot Act reform plan, called the Safe Act, that is still stuck in committee.

One person who likely will wield strong influence over whether Democratic senators side with the Bush administration or the group of six is Vermont Sen. Patrick Leahy, who spent Wednesday conferring with members of his party. "I'm anxiously awaiting an answer," Specter said. (Leahy's office said late in the day that no decision had been made.)

Bush has repeatedly called for a full renewal of the Patriot Act, regularly lacing speeches with phrases like: "Our law enforcement needs this vital legislation to protect our citizens." The White House is expected to increase the pressure on Republican senators not to defect to the group of six.

As a way to twist arms, House Republicans are expected to schedule a vote before Christmas, which would let them and the Bush administration characterize the Senate as obstructionist. A spokesman for the House Judiciary Committee said a floor vote had been anticipated for Thursday but has been delayed: "It won't be on the floor tomorrow. That was our hope earlier today, but it's not going to happen."

History of controversy
From the time a preliminary version was introduced in the Senate days after the Sept. 11, 2001 terrorist attacks, the Patriot Act has been dogged by controversy.

When the final vote was held the following month, members of Congress were required to vote on the bill without a lot of time to read it. The measure "has been debated in the most undemocratic way possible, and it is not worthy of this institution," Rep. Barney Frank, D-Mass., said at the time. Rep. Ron Paul, R-Texas, added later: "Almost all significant legislation since 9/11 has been rushed through in a tone of urgency with reference to the tragedy."

Even though the Patriot Act was approved by overwhelming majorities in both chambers of Congress, some legislators voted for it with the understanding that key portions would be revisited in 2005. Early this year, the Senate and the House of Representatives began a series of hearings on the law.

One portion that has drawn scrutiny is section 215, which permits secret court orders to be used to obtain records or "tangible items" from any person or organization if the FBI claims a link to terrorism. The recipient of the secret order is gagged, and disclosing its existence is punished by a prison term. Section 215 is set to expire on Dec. 31.

Another is the portion of the Patriot Act that requires Internet service providers and any other type of communication provider--including telephone companies--to comply with secret "National Security Letters" from the FBI. Those letters can ask for information about subscribers--including home addresses, what telephone calls were made, e-mail subject lines and logs of what Web sites were visited.

Such letters are not new: Before the Patriot Act was enacted, they could be used in investigations of suspected terrorists and spies. But after the change to the law, the FBI needed only to say that a letter may be "relevant" to a terrorist-related investigation. No court approval is required.

The 2nd Circuit Court of Appeals heard arguments on Nov. 2 about the constitutionality of National Security Letters--which, under current law, don't even permit the recipient to consult an attorney. That portion of the Patriot Act is not scheduled to expire.

Kevin Bankston, a staff attorney at the Electronic Frontier Foundation, said the current debate over the Patriot Act is important but ultimately limited because even the proposed modifications are modest. "To some extent it feels like rearranging the deck chairs on the Titanic," Bankston said. "At the end, it's still going to be the Patriot Act. It's going to be a broad enhancement of police power, of law enforcement and investigative powers."

CNET News.com's Anne Broache contributed to this report.