Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Tuesday introduced legislation to address expiring provisions of the USA PATRIOT Act, which are slated to sunset on December 31. The Judiciary Committee is scheduled to hold a hearing on the expiring provisions of the Patriot Act on Wednesday, September 23. Senator Ben Cardin (D-Md.), the chair of the Subcommittee on Terrorism and Homeland Security, and Senator Ted Kaufman (D-Del.), also a member of the Judiciary Committee, are cosponsors of the legislation.
The USA PATRIOT Act Sunset Extension Act introduced Tuesday also includes a new, four-year sunset on National Security Letters (NSLs), and requires the Department of Justice’s Inspector General to conduct audits of the use of National Security Letters and Section 215 orders from 2007 through 2012. According to a press release issued by Senator Leahy’s office, key provisions of the USA PATRIOT Act Sunset Extension Act of 2009 include:
- Extension of the three expiring provisions of the USA PATRIOT Act to December 31, 2013. The four-year period mirrors the sunsets in the original 2001 Patriot Act and the 2006 reauthorization.
- Adds a new four-year sunset on National Security Letters.
PUBLIC REPORTING AND OVERSIGHT:
- Requires public reporting on the number of requests for National Security Letters that shows greater specificity of the types of persons targeted.
- Requires public reporting that breaks down requests for core types of surveillance, including electronic surveillance, physical searches, business records, and pen registrations.
- Requires new Department of Justice Inspector General audits of the use of National Security Letters, orders for tangible things, and FISA pen register or trap and trace devices (“pen/trap”) covering the years 2007 through 2012.
HIGHER STANDARDS FOR SURVEILLANCE OF AMERICANS:
- Modifies the standards for obtaining a Section 215 order for tangible things and a pen/trap under FISA to require that the records sought are relevant to an investigation and, at minimum, pertain to a suspected agent of a foreign power.
- Modifies the current standard for obtaining a National Security Letter to require a statement of facts showing reasonable grounds to believe that the information sought is relevant to an authorized investigation.
INCREASED JUDICIAL REVIEW:
- Modifies judicial review of nondisclosure orders associated with 215 orders for tangible things by repealing two provisions added in the 2006 reauthorization: (a) the one-year waiting period before seeking judicial review, and (b) the conclusive presumption favoring nondisclosure.
- Imposes a one-year limitation on nondisclosure orders on NSLs and shifts the burden to the government to defend such nondisclosure orders in court.
- Requires court approval of minimization procedures for 215 orders for tangible things and for pen/traps.
The proposed legislation comes a week after Senator Russ Feingold and others introduced their own bill, The JUSTICE Act. Unlike the JUSTICE Act, which includes a provision that would completely repeal provisions in the FISA Amendments Act that immunized telecoms for assisting the National Security Agency’s warrantless wiretapping program, the Sunset Act includes no such provision.
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