A Very Tentative Reaction to the Patriot Act Compromise:
I just finished reading the compromise language hammered out to settle the future of the Patriot Act, and I wanted to blog some initial thoughts. Importantly, these thoughts are highly tentative: I sat down with the 97 pages of statutory text for about an hour before I started to write this post, and it's always possible I missed something important or misconstrued some key sections. With that caveat made, here is my take. [UPDATE: This posts assumes the compromise bill will become law, although according to this story, it may not.]

  This is a win-win bill, but on the whole it's more of a win for the Administration. The basic structure of preexisting law remains in place, but the new law bolsters judicial review and enhances record-keeping and Congressional oversight concerning some of the most controversial provisions of the Patriot Act. From the government's perspective, they get to keep the Patriot Act, subject to some new restrictions. From a civil libertarian perspective, they are stuck with the Patriot Act, but get some of the increased judicial review and Congressional oversight they wanted. On the whole, the compromise is more or less what I expected. Each side gave up something relative to their positions in 2001, but the Administration's better bargaining position (owing to a relative lack of current public opposition to the Patriot Act) meant that the government gave up less.

  Here is a summary of the key developments.

  Section 215 Orders. The big changes here are judicial review of order applications, explicit rights to challenge orders, and increased Congressional oversight. To obtain a Section 215 order for the production of "tangible things," the government must show facts establishing reasonable grounds that the items are relevant to an authorized investigation. The language here is pretty poorly written, but I think the factual showing is reserved for cases that do not invove a "United States person," FISA-Speak for U.S. citizens and lawful permanent residents. The basic idea: the government has to prove the case for relevance to a judge if the order concerns a citizen or permanent resident.

  The Section 215 provisions add a regime of judicial review after the order has been signed, as well. People who receive a Section 215 ordes can consult with attorneys and challenge the order in the FISA court on the ground that the order "does not meet the requirement of [the] section or is otherwise unlawful." The FISA Court of Review can hear appeals from the FISA court's resolution of those challenges, and the losing party can then file a petition for certiorari before the Supreme Court.

  DOJ has to do lots of record-keeping relating to Section 215 orders, as well. In annual reports, DOJ must disclose the number of orders granted, modified, or denied, and must give breakdowns for particular types of orders, such as library circulation records, library patron lists, book sales records, book customer lists, firearm sales records, tax return records, etc. Finally, the DOJ Inspector General has to do a comprehensive and detailed audit of how Section 215 powers are being used.

  Sneak and Peek Warrants. The compromise bill also imposes a few additional limitations (albeit rather weak ones) on delayed notice warrants. Existing law permits judges to delay notice on warrants for a "reasonable period" for a range of reasons. The new language replaces the "reasonable period" standard with this rather puzzling standard: "a reasonable period not to exceed 30 days after the date of [the warrant's] execution, or on a later date certain if the facts of the case justify a longer period of delay." I suppose judges may read this as establishing a presumption that a "reasonable period" normally will not exceed 30 days, but it's not really clear.

  The sneak-and-peek provisions also add a requirement that judges who authorize delayed notice warrants must file a report with the Administrative Office of the United States Courts explaining that a warrant was applied for, and granted, listing the period of delay, and the crime under investigation. The Administrative Office will then provide Congress with an annual report summarizing the data they received by judges. It'll be interesting to see if the reporting requirement makes some judges less willing to issue delayed notice warrants; I would imagine that some judges would rather not have to file the reports.

  National Security Letters. Finally, the compromise bill adds some new regulations of National Security Letters (NSLs), letters issued by the FBI ordering the disclosure of third-party records. First, recipients of NSLs can file a petition in any district court in which they live or do business asking the district court to modify or set aside the order on the ground that compliance would be "unreasonable, oppressive, or otherwise unlawful." They can also petition the court for permission to no longer be bound by the gag orders that accompany NSLs. District courts can modify or set aside gag orders if they find "that there is no reason to believe that disclosure may endanger the national security of the United States" or interfere with an investigation or diplomatic relations. At the same time, the Attorney General, Assistant, AG, and FBI Director retain the right to file a certification in the action stating that disclosure would endanger those interests; if such a certification is filed, it is conclusive unless the court believes it was filed in bad faith.

  Finally, the Inspector General of DOJ has to perform a detailed audit of how the NSL authority is being used.
washerdreyer (mail) (www):
Thanks, this is really useful.
11.17.2005 12:27am
Zargon (mail):
Agreed - thank you, Orin.
11.17.2005 12:36am
jgshapiro (mail):
At the same time, the Attorney General, Assistant, AG, and FBI Director retain the right to file a certification in the action stating that disclosure would endanger those interests; if such a certification is filed, it is conclusive unless the court believes it was filed in bad faith.

Sounds like window dressing. Since a court is unlikely to say that a document filed by the U.S. Attorney General/FBI Director/ Assistant AG was filed in bad faith, the right to petition a district court to ignore an NSL is not of much use, given the near-conclusive presumption that accompanies certification.
11.17.2005 2:32am
Thanks Orin. I might note that I feel like this is very much a "win" for process-oriented folks like me (I think it is proper for the government's powers to fight terrorism to have, ultimately, a broad scope, provided that all three branches of government remain actively involved in making sure the government is not abusing its powers).


I agree that these NSL procedures seem to set a very low bar for the government, although I'd be interested to know what the certification must include (just a blanket statement, or also more specific statements of fact?). I'd also note that it appears to restrict the use of these certifications to the named officials, which might have beneficial effects (some have argued that allocating NSL power to regional FBI officials has led to their overuse or, at the least, a relative lack of transparency and accountability in this area).

But in any event, I think it is significant that district courts across the country will be hearing these cases, because I think that creates a possibility that at least some bad faith findings would occur if the government actually abused this power. And that in turn could create precedents on which other district courts could rely. All of which might encourage a cautious DOJ/FBI to self-regulate their use of such certifications, at least in some measure.

Of course, recently the DOJ and FBI have not been very cautious in the relevant sense. But I would note that these issues are likely going to be with us for a long time, and future DOJs and FBIs may approach them somewhat differently. Indeed, with the apparent willingness of Congress to play a more active role in regulating these issues (and I take all these reporting requirements to suggest an ongoing implied threat of additional regulation), perhaps even the current DOJ and FBI will reconsider some of their tactics.
11.17.2005 7:22am
Peter Swire (mail):
I have written a blog post discussing the bill and responding to Orin. The two changes that still should happen: (1) shorten the sunset to the 4 years voted by both the Senate and the House; and (2) link the record searches to the actual suspects and those known to or in contact with the suspects, as in the Senate bill.
11.17.2005 8:31am
carpundit (www):
The USG is extremely careful in its use of NSLs. They know an angry Congress can strip them of the tool anytime.

As for delegation to regional officials leading to overuse, I'd like to point out that the number of terrorism investigations increased sharply after 9/11 as the government reallocated its manpower. The increased NSL use tracks that reallocation. Also, it is impractical to expect one Washington official to review the use of NSLs in every case. Talk about a bottleneck.

I understand the importance of privacy; I really do. But this NSL worry is overblown. The USG is after terrorists, not dissenters.
11.17.2005 9:14am

As I understand it (and I am relying solely on Orin here, but I hold him blameless for my misunderstandings), the certification in question would not be required for every NSL. Rather, first, the recipient would have to challenge the NSL in a district court. And even then, I presume that the government could defend the NSL without using such a certification. So, they would only have to use such a certification in those cases where they believed that they needed to avail themselves of this somewhat unusual presumption.

On the general subject of how NSLs have and will be used: I don't find it implausible that the FBI may not be abusing this device. I also don't find it implausible that the FBI may in fact be abusing this device. The basic problem, as I understand it, is that no one really knows much about how the FBI is using this device. So, a lot of these procedures seemed designed, implicitly or explicitly, to make the use of NSLs more transparent.
11.17.2005 9:56am
Random semi-related question.

Why does the 4th amendment not apply to private records/info held by a third party? I understand the rationale that the private individual no longer has a privacy expectation after they give the info to someone else, but why isn't it protected under the 4th amendment rights of the third party holding the record? Is it just a reciprocal kind of reasoning, you don't have an expectation of privacy with information someone else gave you?
11.17.2005 11:31am
It still contains no ability for falsely targetted parties to seek redress from the government for unwarranted searches into their private records. And it seems to extend NSLs to mere criminal investigations now, instead of limiting them strictly to terror investigations.
11.17.2005 11:37am
Erick, as Orin will tell you, serving compulsory process (such as a GJ subpoena or an NSL) is technically covered by the Fourth Amendment, but treated under a very different standard owing to the technically "voluntary" nature of the production. (I.e., as opposed to seizure via warrant, where you must stand aside &allow the seizure to occur, you may object to compulsory process by moving to quash for overbreadth/burdensomeness/etc.)

Thus, the interests (if any) of the records custodian are held to be vindicated by the availability of such challenges. Note, of course, that this is true whether the compulsory process is directed at a third party or the owner him/herself.
11.17.2005 3:12pm