House Judiciary Committee Marks Up Bill to Extend Expiring Provisions of PATRIOT Act

July 13, 2005. House Judiciary Committee (HJC) amended and approved HR 3199, the "USA PATRIOT and Intelligence Reform Reauthorization Act of 2005" by a vote of 23-14. This bill, as amended, makes permanent fourteen of the sixteen sections of the PATRIOT Act that are scheduled to sunset at the end of this year. It creates a new ten year sunset for § 206 (regarding roving wiretaps) and § 215 (regarding access to business records, including library records, under the FISA). It also makes permanent two provisions of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) that were scheduled to sunset.

The HJC began its mark up just after 10:00 AM on Wednesday, July 13. It finished just before 10:00 PM. Except for one break, the Committee worked continuously. The Committee considered 43 amendments, about five secondary amendments, and one reconsideration. It conducted 29 roll call votes. The final vote was 23-14. 23 Republicans voted yes. 14 Democrats voted no. Two Democrats voted "pass", Rep. Howard Berman (D-CA) and Rep. Adam Schiff (D-CA).

Rep. James Sensenbrenner (R-WI), the Chairman of the HJC, introduced HR 3199 on July 11. See, text [9 pages in PDF] of bill as introduced. See also, stories titled "House Judiciary Committee to Mark Up Bill to Make Permanent the Sunsetted Provisions of the PATRIOT Act" and "Summary of HR 3199 IH" in TLJ Daily E-Mail Alert No. 1,172, July 12, 2005.

A Committee aide stated on Monday that Chairman Sensenbrenner will seek consideration by the House next week. Chairman Sensenbrenner also announced at the conclusion of the Committee mark up that members have only two days to submit additional materials.

The House Intelligence Committee (HIC), which also has jurisdiction over this bill, amended and approved this bill on July 13. It held a substantially closed meeting. The HIC released Rep. Peter Hoekstra's (R-MI) opening statement [PDF]. This bill has not been referred to any other House committees.

The USA PATRIOT Act is an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001". The 107th Congress enacted this bill quickly after the terrorist attacks of September 11, 2001. It was HR 3162. It became Public Law 107-56 on October 26, 2001.

The PATRIOT Act was approved by the House on October 24, 2001 by a vote of 357-66. See, Roll Call No. 398. Three Republicans and sixty-two Democrats voted against the bill.

Much of Title II of the PATRIOT Act pertains to electronic surveillance affecting new technologies. § 224 of the PATRIOT Act provides that sixteen of the sections (or subsections) of Title II sunset at the end of 2005, unless extended.

The offering of amendments, and voting was almost entirely partisan. The Committee approved four Republican amendments early in the markup (and one minor and technical secondary amendment). The rest of the amendments were offered by Democrats. Most were withdrawn, ruled not germane, or defeated on almost straight party line votes.

Every member of the Committee participated in at least part of the meeting. On most of the roll call votes, almost every member was present. There was also a huge contingent of Committee staff, and staff from the personal offices of Committee members. There was also a contingent of Department of Justice (DOJ) lawyers, including William Moschella. They consulted extensively and at length with the Republican members, and Republican Committee staff, throughout the meeting.

The public seating section was full at the beginning of the meeting. As the meeting progressed, the public section became nearly empty. At this meeting, as at the dozen hearings held by the Committee and its Crime Subcommittee, almost no representatives of telecommunications carriers, internet service providers, or technology companies attended.

TLJ spoke with Rep. Bob Goodlatte (R-VA), a Co-Chair of the Congressional Internet Caucus, at the conclusion of the mark up. He said that when the House considered the original PATRIOT Act in 2001, internet companies were concerned about many of the provisions in the draft bill. However, now that the Congress is considering extending sections of the PATRIOT Act, these same companies are not involved. He said that he has not heard from ISPs or carriers this time around.

Rep. Rick Boucher (D-VA), who is the other House Co-Chair of the Congressional Internet Caucus, was absent from most of the meeting, and appeared to cast a vote only 11 times. He missed 18 votes.

Summary of Amendments to HR 3199. During the course of a 10:00 AM to 10:00 PM mark up, the Committee considered 43 amendments, about five secondary amendments, and one reconsideration. It conducted 29 roll call votes. The following is a summary of the amendments that the Committee approved.

First, the Committee approved by unanimous voice vote a minor amendment offered by Rep. Dan Lungren (R-CA) that creates a reporting requirement pertaining to § 212 of the PATRIOT Act, which amended 18 U.S.C. § 2702, regarding voluntary emergency disclosure of electronic communications by service providers.

That is, § 212 provides that "a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service", but also adds the following exception: "if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure of the information without delay".

Rep. Lungren's amendment requires that "On an annual basis, the Attorney General shall submit to the Committees on the Judiciary of the House and the Senate a report containing ... the number of accounts from which the Department of Justice has received voluntary disclosure ... and ... a summary of the basis for disclosure in those instances where ... the investigation pertaining to those disclosures was closed without the filing of criminal charges".

Second, the Committee approved by voice vote a very minor and technical amendment offered by Rep. Jeff Flake (R-AZ) regarding § 215 of the PATRIOT Act. The Committee rejected numerous other more substantial amendments related to § 215.

Basically, Rep. Flake's amendment replaces, in Section 8(c) HR 3199 as introduced, the phrase "in response to" with "with respect to". Section 8(c) pertains to access to business records, including library records, under the Foreign Intelligence Surveillance Act (FISA). Currently, the statute includes a strict non-disclosure mandate. For example, a library or other records holder that receives an order to produce records cannot disclosure to its users, or others, that it has received such an order.

Section 8(c) of HR 3199 provides exceptions. Rep. Flake's amendment applies to the following language in HR 3199 as introduced: "Any person to whom an order is directed under this section who discloses that the United States has sought to obtain tangible things under this section to a qualified person in response to the order shall inform such qualified person of the nondisclosure requirement under paragraph (1) and that such qualified person is also subject to such nondisclosure requirement." (Emphasis added.)

Third, the Committee approved by a vote of 34-0 an amendment offered by Rep. Darrell Issa (R-CA) that requires the government to report more information to the court regarding its use of roving surveillance authority under § 206 of the PATRIOT Act.

Rep. Issa's amendment provides, in part, that "in the case of electronic surveillance directed at a facility or place that is not known at the time the order is issued, the applicant shall notify a judge having jurisdiction under section 103 within 10 days after electronic surveillance begins to be directed at a new facility or place, and such notice shall contain a statement of the facts and circumstances relied upon by the applicant to justify the belief that the facility or place at which the electronic surveillance is or was directed is being used, or is about to be used, by the target of electronic surveillance."

Rep. Issa stated that this means that when a court issues a roving wiretap order, the court will have constant oversight.

Fourth, the Committee approved by a vote of 26-2 a key amendment offered by Rep. Lungren that imposes a new ten year sunset for § 206 (roving wiretaps) and § 215 (access to business records under the FISA).

The Committee also approved by unanimous consent a technical amendment to this amendment. The Committee rejected other amendments to shorten the sunset term, and to extend the sunset to fourteen other sections of the PATRIOT Act.

Democrats argued that without a sunset provision, the Congress has little leverage over the Department of Justice (DOJ) in oversight activities. That is, unless the DOJ must go to the Congress to obtain an extension, it has little incentive to provide information to the Congress.

Republicans argued that a broader, or shorter, sunset provision is not necessary because the DOJ has not abused its PATRIOT Act powers in the past four years.

Fifth, the Committee approved an amendment by unanimous voice vote offered by Rep. Adam Schiff (D-CA) that criminalizes certain surveillance of transportation facilities with intent to commit an act of terrorism.

The Schiff amendment amends 18 U.S.C. § 1993, regarding "Terrorist attacks and other acts of violence against mass transportation systems". It would allow criminal prosecution of anyone who "surveils, photographs, videotapes, diagrams, or otherwise collects information with the intent to plan or assist in planning any" of the other acts listed in Section 1993.

Sixth, the Committee approved an amendment offered by Rep. Zoe Lofgren (D-CA) that creates a new reporting requirements for the DOJ regarding detentions.

Seventh, the Committee approved en bloc three non-controversial definitional amendments offered by Rep. Schiff. One amends the activities that can give rise to civil forfeiture under 18 U.S.C. § 981 to include "trafficking in nuclear, chemical, biological, or radiological weapons technology or material". Another amends 18 U.S.C. § 2332b regarding the predicate offenses for a "Federal crime of terrorism". It adds, for example, crimes relating to nuclear and weapons of mass destruction threats. The third amends 18 U.S.C. § 2516 regarding "Authorization for interception of wire, oral, or electronic communications". It adds numerous offenses to the already huge list of offenses that may serve as a predicate offense for the issuance of a wiretap order. All of the new offenses could  conceivably be associated with terrorism.

Eighth, the Committee approved by voice vote an amendment offered by Rep. Jerrold Nadler (D-NY) regarding § 213 of the PATRIOT, regarding delayed notice of search warrants.

Currently, 18 U.S.C. § 3103a , which was amended by § 213, provides that the court may issue a search warrant that provides for delayed notice if "the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown". What is "reasonable" is not defined, and is potentially unlimited.

Rep. Nadler's amendment inserts time limits. It provides for a delayed notice warrant if "the warrant provides for the giving of such notice within a reasonable period, which shall not be more than 180 days, after its execution, which period may thereafter be extended for not more than 90 days by the court for good cause shown". (Emphasis added.)

The Committee initially approved an amendment offered by Rep. Zoe Lofgren (D-CA) regarding habeas corpus, but later reconsidered and rejected the amendment.

All other amendments were defeated, withdrawn or ruled not germane.