House Approves PATRIOT Act Extension Bill

July 21, 2005. The House amended and approved HR 3199, the "USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005". This bill permanently extends 14 of the 16 sections of the PATRIOT that are scheduled to sunset at the end this year. It provides for a further 10 year sunset for § 206 (regarding roving wiretaps) and § 215 (regarding access to business records, including library records, under the FISA).

The Senate has yet to approve this bill, or a related bill. However, on July 21, the Senate Judiciary Committee amended and approved S 1389, the "USA PATRIOT Improvement and Reauthorization Act of 2005". See, story titled "Senators Introduce Bill to Extend Expiring Provisions of PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,175, July 15, 2005.

The final vote in the House was 257-171. The vote broke down largely along party lines. Republicans voted 214-14, while Democrats votes 43-156. See, Roll Call No. 414.

The Congress enacted the USA PATRIOT Act immediately after the terrorist attacks of September 11, 2001. § 224 of the PATRIOT Act sunsets sixteen sections of Title II of the Act at the end of this year. These sixteen provisions pertain mostly to surveillance, searches, and seizures by the Federal Bureau of Investigation (FBI).

Many of the sections of Title II pertain to wiretapping in traditional telecommunications, surveillance in new internet protocol based services, and accessing stored electronic data. The full House approved the version of the bill [PDF] reported by the House Rules Committee (HRC) on July 20, along with 17 amendments.

Most of the amendments approved by the House do not pertain to the 16 sunsetting provisions of the PATRIOT. Most are related to combatting terrorism. However, a few are not anti-terrorism provisions. The House Rules Committee (HRC) did not make in order numerous proposed amendments that would have addressed the sunsetted provisions. The HRC did, however, permit this bill to be used as a vehicle for enactment of unrelated proposals.

Amendments Related to Searches, Seizures and Surveillance. Six of the amendments approved by the House pertain to searches, seizures and surveillance.

The full House approved one symbolic amendment regarding § 215 and orders to produce business records under the FISA, and one amendment regarding § 206 and roving wiretaps.

The House also approved one amendment regarding national security letters (NSLs). The PATRIOT Act contained provisions related to NSLs, but these were not sunsetted by the PATRIOT Act, and are not in Title II. However, NSLs are a method by which the FBI seizes records.

The House also approved an amendment regarding delayed notice of search warrants. § 213 of the PATRIOT Act amended the law on this subject. However, the PATRIOT Act did not sunset this section.

The House also approved an amendment expanding the list of offenses that may serve as a predicate for the issuance of a wiretap order.

Finally, the House approved a amendment regarding data mining. Specifically, this relates to what the government does with data that it obtains, rather than searches, seizures or surveillance to obtain that data.

The House approved by a vote of 402-26 an amendment [PDF] offered by Rep. Jeff Flake (R-AZ) that would require that the Director of the Federal Bureau of Investigation (FBI) must personally approve any request for records from a library or bookstore by the FBI under § 215. This is largely symbolic, because it is likely that the FBI will rarely, if ever, use this authority with respect to a U.S. person. All of the no votes were cast by Republicans. See, Roll Call No. 403.

The House approved by a vote of 406-21 an amendment [PDF] offered by Rep. Darrell Issa (R-CA) regarding § 206 and roving wiretaps. It would increase the oversight over the use of roving wiretaps by requiring an applicant to notify the issuing judge within a reasonable time, as determined by the court but not more than 15 days, of the change of surveillance from the initial facility or place to a new one. It would also require the applicant to specify the total number of electronic surveillances that have been or are being conducted. All of the no votes were cast by Republicans. See, Roll Call No. 404.

The House approved by a vote of 394-32 an amendment [14 pages in PDF] offered by Rep. Flake that pertains to national security letters (NSLs). 28 of the no votes were cast by Republicans. See, Roll Call No. 406.

This amendment provides that the recipient of a NSL may consult with an attorney, and filed a petition challenging the NSL in federal court. The amendment would authorizes the court to grant the petition "if compliance would be unreasonable or oppressive" to the recipient of the NSL. The amendment would also allows the recipient to challenge the non-disclosure requirement, and permit the court to modify or remove the non-disclosure requirement "if it finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person." The amendment would modify the non-disclosure requirement to allow recipients to disclose to individuals whom they work in order to comply with the request. The amendment would also require reporting to the Congress on the exercise of NSL authority.

The House rejected by voice vote a hastily drafted amendment [PDF] offered by Rep. Maxine Waters (D-CA) that would have placed substantial limitations upon the government's ability to enforce the non-disclosure requirements associated with national security letters, and with § 215 orders for the production of business records.

The House approved by a vote of 407-21 an amendment [PDF] offered by Rep. Flake regarding § 213 and delayed notice of search warrants. The procedure is also referred to by its critics as sneak and peak. This amendment would require the Administrative Office of the United States Courts to report annually to the Congress on the number of delayed notice search warrants. All 21 no votes were cast by Republicans. See, Roll Call No. 408.

The House approved by a voice vote an amendment [PDF] offered by Rep. Dan Lungren (R-CA) that expands the predicate offenses for wiretap orders. That is, wiretap orders are issued by a judge upon a finding of probable cause. They are not available for the investigation of any crime. The Criminal Code lists those offenses that may serve as a predicate for the issuance of a wiretap order. This amendment further expands an already long list offenses.

Finally, the House approved by a vote of 261-165 an amendment [PDF] offered by Rep. Howard Berman (D-CA). It would require the Department of Justice (DOJ) to report to the Congress on the development and use of data mining technology by departments and agencies of the federal government. The amendment defines data mining, requires an annual report on data mining activities by federal agencies, and specifies the contents of the report.

Rep. Berman and Rep. William Delahunt (D-MA) offered a very similar data mining amendment during the House Judiciary Committee (HJC) mark up on July 11. Chairman Sensenbrenner stated that it was not germane, and Rep. Berman withdrew the amendment. However, Rep. Sensenbrenner also stated at that mark up that he supports the concept, and wants to see the Congress enact data mining related legislation as part of a separate bill. He voted for this amendment, along with 61 other Republicans. Democrats voted 198-0 for this amendment. See, Roll Call No. 409.

Other Amendments. Another eleven amendments approved by the House do not pertain either to the sunsetted provisions, or to searches, seizures or surveillance.

The House approved by a vote of 362-66 an amendment [PDF] offered by Rep. Shelley Capito (R-WV) regarding terrorist attacks on railroad and other transportation systems. 65 of the 66 no votes were cast by Democrats. See, Roll Call No. 405. The House also approved by voice votes an amendment [PDF] offered by Rep. Adam Schiff (D-CA) that would criminalize to use a vessel to smuggle terrorists or dangerous materials, and an amendment [PDF] offered by Rep. Pete Sessions (R-TX) pertaining to aircraft.

The House also approved by a vote of 418-7 an amendment [PDF] offered by Rep. Delahunt that would make a definitional change in the forfeiture statute. See, Roll Call No. 407.

The House approved by voice vote an amendment [PDF] offered by Rep. Henry Hyde (R-IL) that would make narco-terrorism a crime.

The House approved by voice vote an amendment [PDF] offered by Rep. Nita Lowey (D-NY) regarding the way the federal government provides grant funding to first responders.

The House approved by voice vote an amendment [PDF] offered by Rep. John Carter (R-TX) that would apply the death penalty or life imprisonment for a terrorist offense that results in death.

The House approved by voice vote an amendment [PDF] offered by Rep. Melissa Hart (R-PA) that would increase the penalties for activities constituting terrorism financing from $11,000 to $50,000 per unlawful transaction and criminal sentences from 10 to 20 years.

The House approved by voice vote an amendment [PDF] offered by Rep. Sheila Lee (D-TX) that would amend 18 U.S.C. § 981, the federal civil forfeiture statute, to allow the attachment of property, and the enforcement of judgment, against a judgment debtor who has engaged in planning or perpetrating any act of domestic or international terrorism.

The House approved by voice vote an amendment [PDF] offered by Rep. Ron Paul (R-TX) that expresses the sense of the Congress that no American citizen should be the target of a federal investigation solely as a result of that person's political activities.

And finally, the House approved by voice vote an amendment [PDF] offered by Rep. Howard Coble (R-NC) pertaining to the Contraband Cigarette Trafficking Act and smokeless tobacco.

Reaction. President Bush released a statement: "I commend the House for voting to reauthorize provisions of the Patriot Act that are set to expire this year. The Patriot Act has enhanced information sharing between law enforcement and intelligence personnel, updated the law to adapt to changes in technology, and provided critical tools to investigate terrorists that have been used for years in cases against organized crime and drug dealers. The Patriot Act is a key part of our efforts to combat terrorism and protect the American people, and the Congress needs to send me a bill soon that renews the Act without weakening our ability to fight terror."

Attorney General Alberto Gonzales stated after the House vote that "I am pleased that the House of Representatives has decided to renew the vital provisions of the USA PATRIOT Act. After measured deliberation and a public debate, the House has again provided the brave men and women of law enforcement with critical tools in their efforts to combat terrorism and protect the American people. Given the strong bipartisan support reflected in today's vote, I look forward with great optimism to the Senate's consideration of the USA PATRIOT Act and its ultimate renewal."

See also, floor statement by Rep. Sensenbrenner.