Patriot Act Renewal Renews Reformers’ Determination

| May 31, 2011

President Barack Obama signed into law the evening of May 26 a four-year renewal of the Patriot Act that included none of the reader-privacy and Fourth Amendment protections sought by freedom-to-read groups such as the American Library Association, the Association of Research Libraries (ARL), and the American Booksellers Foundation for Free Expression (ABFFE). Obama authorized S. 1038 to be signed by autopen because the law would have expired at 12:01 a.m. on May 27 and he was in France at the time.

Extended until June 1, 2015, the PATRIOT Sunsets Extension Act of 2011 includes what has become known as the “library” provision, or Section 215, which allows federal authorities conducting a counterterrorism investigation to seize someone’s library or business records unbeknownst to the individual and without a court order. Also extended are the roving wiretap and the “lone wolf” provisions. The first permits the tapping of all electronic and phone communications of a suspect, and the second legalizes the granting of a court order to surveil an individual thought to be making terrorist plans even though he or she is not believed to have ties to a terrorist group.

The last renewal of the Patriot Act occurred in February with the tacit understanding that civil-liberties reforms would be considered before its May 27 expiration. ALA and ARL had supported several amendments sponsored by Sen. Rand Paul (R-Ky.). One would have extended the Patriot Act for three years instead of four; another, cosponsored by Sen. Patrick Leahy (D-Vt.), would have added civil-liberties protections to the bill. Although the latter had garnered bipartisan support in the Senate Judiciary Committee, it was not debated on the Senate floor and the Patriot Act was passed unamended May 26 by a vote of 72–23 after clearing the House 200–153.

Two members of the Senate Intelligence Committee also expressed reservations about renewing the Patriot Act, citing the possibility of interpretive overreach in how investigations are being conducted and cosponsoring a failed amendment (PDF file) to increase transparency. “We all agree the intelligence community needs effective tools to combat terrorism, but we must provide those tools in a way that protects the constitutional freedoms of our people and lives up to the standard of transparency that democracy demands,” Sen. Mark Udall (D-Colo.) said May 24 during Senate debate.

“When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry,” Sen. Ron Wyden (D-Oreg.) stated on the Senate floor May 26, noting that Sen. Dianne Feinstein (D-Calif.), chair of the Senate Intelligence Committee, had agreed to hold a hearing in June. In a Wired interview published a day earlier, Wyden explained, “It is fair to say that the business-records provision [Section 215] is a part of the Patriot Act that I am extremely interested in reforming.”

Wired reported May 26 that a geolocation-technology regulation bill drafted by Wyden and Rep. Jason Chaffetz (R-Utah) explicitly excludes geolocation data from the definition “any tangible thing” that the federal government can seize as part of an investigation under Section 215. “It’s highly suggestive that the secret ‘interpretation’ of the Patriot Act that Wyden has been warning about may involve allowing the use of these broader intelligence tools for some sort of potentially very large-scale location tracking,” Cato Institute privacy and technology researcher Julian Sanchez told Wired, explaining his reasoning in more detail the next day at the Cato @ Liberty blog.

The push to reform the Patriot Act is also coming from at least one other quarter. Lynne Bradley, director of the Office of Government Relations in ALA’s Washington Office, reported May 27 on the District Dispatch blog that “there is already another effort by Senate reformists to address needed changes [to the Patriot Act]. Senators Leahy, Akaka, Bingaman, Boxer, Cardin, Coons, Durbin, Franken, Gillibrand, Harkin, and Wyden have introduced the USA PATRIOT Act Improvements Act of 2011 (S. 1125)” and that the Association would review the bill and continue “working with supporters and allies.”