Congressional Record: June 6, 2005 (Senate)
Page S6080-S6082

                   Reauthorizing the USA-PATRIOT ACT

  Mr. WYDEN. Mr. President, tomorrow the Senate Select Committee on 
Intelligence gets back on the national security high wire as the 
committee continues to work on legislation reauthorizing the USA 
PATRIOT Act. I described this process as a high-wire act because 
success means striking a balance, an equilibrium, between fiercely 
protecting our country from terrorism while still preserving the 
privacy and civil liberties that make our democracy so precious.
  Chairman Pat Roberts, to his credit, has held several open hearings 
on this issue. I gladly participated because I believed the open 
hearings would help to address some of the skepticism about why the 
PATRIOT Act has almost totally been debated in secret.
  Unfortunately, the most important part of the debate, the part where 
the committee must actually discuss how to walk that high wire, is 
still going to be done behind closed doors. In my view, this secrecy in 
going forward will undermine any public confidence that open hearings 
helped to create.
  I have repeatedly and vigorously opposed making these decisions out 
of public view. Holding the decisionmaking process in secret is a 
mistake because it makes it harder for citizens to hold elected 
officials accountable. Holding the decisionmaking process in secret is 
unnecessary because it is not difficult for the committee to go behind 
closed doors, certainly, briefly, when necessary, to discuss any 
PATRIOT Act-related issue that requires secrecy. Holding the 
decisionmaking process in secret gratuitously feeds the cynicism that 
citizens have about the Government's true intentions with respect to 
this law. Keeping these proceedings secret fuels concerns that the 
committee is making choices that will not stand up to public scrutiny--
deciding, for example, that you can only have security if you sacrifice 
privacy. In my view, that is a false choice. I simply do not believe 
that protecting our country from terrorism and securing the privacy 
rights of our citizens are mutually exclusive objectives.
  So here is my bottom line: Give law enforcement and intelligence 
officials the tools they need to protect our country, but stay away 
from the fishing expeditions. I do not think anybody will argue with me 
when I say that Congress passed the PATRIOT Act shortly after September 
11, 2001, because it was necessary to move in a hurry. It was clear no 
one could have conceived of the way in which our country was exposed to 
attack. It was clear that the Federal Government needed to make major 
changes in how it fought terrorism, and those were needed immediately.
  The best parts of the law tore down the unnecessary walls that had 
grown up between law enforcement and the intelligence agencies. Today, 
if you go out to the National Counterterrorism Center, the people on 
the ground there will tell you that those walls have been torn down, 
and they have stayed down. So the men and women on the front lines in 
the fight against terror are, in my view, more effective than they 
  However, other provisions of the law have sparked serious concerns. 
Giving Federal authorities broad powers of investigation has raised the 
specter that the rights of law-abiding citizens might be severely 
compromised, accidentally or even intentionally. In moving forward, I
want to make sure that the right of our citizens to privacy is 
certainly not compromised intentionally.
  I am not suggesting our national intelligence or law enforcement 
agencies are currently being misused the way they have been during our 
history--such as in the Watergate scandal. But it is important for us 
to make sure that appropriate safeguards are in place to prevent 
unintentional abuses and prevent future even darker episodes in our 
country's history.
  In my view, a proposed addition to the PATRIOT Act, one that 
certainly warrants open debate, is the administrative subpoena which, 
in my view, raises the risk of real abuse. I want to make it clear on 
this subject today, I believe reauthorization of the PATRIOT Act should 
simply not include new administrative subpoena authority for the FBI.
  I am opposed to giving the FBI this authority to write their own 
administrative subpoenas for foreign intelligence investigations for a 
number of reasons. Doing so would give the FBI the authority to demand 
just about anything from just about anybody, with no independent check, 
simply by claiming that it is relevant to a national security 
investigation. The FBI already has access to the waterfront of personal 
information through the FISA warrant process. All they have to do is go 
before a judge and explain why it is relevant in the most general 
terms. By giving the FBI the authority to write their own 
administrative subpoenas, the Congress would be removing this even last 
modest safeguard.
  Administrative subpoenas are currently used by many Federal agencies 
in many contexts. But, except in a very few limited cases, they are not 
used for national security investigations. National security 
investigations are simply different than criminal investigations. They, 
of course, are conducted in secret and do not require evidence of a 
crime. This is why there are different rules for the two types of 
investigations. It is not enough, in my view, to say what is good for 
the goose is good for the gander. The question here is, What is good 
for the American people? The answer is not administrative subpoenas.
  As proposed, these subpoenas would be extraordinarily broad in their 
scope. They could be used to gain access to your credit records, your 
video rentals, your medical records, your gun purchases. They could be 
used to obtain just about anything. These subpoenas would only be seen 
by a judge if the recipient of the subpoena decided to challenge it. 
Even if the recipient was properly notified of his or her right to 
challenge, they might not be in the position to have the time or the 
resources to even make that challenge.
  For example, there are 56 FBI field offices, one in just about every 
major American city. The head of the local field office could issue an 
administrative subpoena to a hospital director and ask for all the 
hospital's medical records simply by claiming they were relevant to an 
investigation. If the hospital director was busy or did not have the 
resources to make a challenge, then no judge--no judge would ever see 
this administrative subpoena. The patients would not even know that 
their records had been seized. They would be totally in the dark.
  Even the FBI acknowledges that the agency can get all the information 
they could possibly need with the investigative powers they currently 
have. The only reason they have suggested for supporting this judge-
free administrative subpoena is speed. They say that the FISA warrant 
process is simply too slow for time-sensitive, emergency situations.
  This afternoon I would like to propose on the floor of the Senate an 
alternative. In this year's reauthorization of the PATRIOT Act, 
Congress can balance protection for the public with the right of 
privacy by creating an emergency use provision to the FISA business 
records authority. This way, under the proposal I make today, if the 
FBI needs information right away, the FBI could notify a judge that 

[[Page S6081]]

were going to get it--send an e-mail, leave a voice message--and then 
go get it without waiting for a response. Then they would have 72 hours 
to apply for the warrant so they could do it after the emergency had 
been addressed. If the judge felt the FBI had acted inappropriately and 
decided not to grant the warrant, then the Agency would not be able to 
use whatever information they had gathered. The idea of adding an 
emergency use provision along the lines I have described would address 
the FBI's concern for speed without creating a broad new authority that 
would remove all the independent checks, even in situations where there 
were not emergencies.
  Although time was not taken in 2001 to thoroughly discuss the privacy 
issues related to the PATRIOT Act, most of the law's more controversial 
provisions were made subject to sunset. This was done in hopes of a 
more thoughtful, informed debate during the reauthorization. The 
sunsets, in my view, have had an unanticipated benefit. They have made 
the agency very careful about how it uses the powers that have been 
  In addition to the proposal that I am making today to give the FBI 
more authority to deal with emergencies, I believe the Senate should 
also focus its attention on sharper scrutiny for the sunset provisions 
in the act. Some of the sunset provisions that have existed have not 
attracted any controversy. Others have not only attracted controversy, 
serious questions have been raised about their use and possible misuse. 
I want to consider some of these provisions in detail today and, in 
addition to the proposal I have made with respect to giving the FBI 
emergency authority, I urge firm action to safeguard the American 
people as the sunset provisions are considered in the PATRIOT Act's 
  The provision that has attracted the most attention is probably 
section 215 of the PATRIOT Act. It is commonly referred to as the 
library records provision, but in fact it ought to be called the 
business records provision. Suffice it to say, it is a sweeping one. 
This provision gives law enforcement access to all types of information 
from video rentals and gun purchases to tax and medical records. In a 
nutshell, here is how it works.
  Under the Foreign Intelligence Surveillance Act, FISA--which I have 
referred to several times already--it is possible for FBI agents to go 
to a judge and request a secret warrant to obtain business records. The 
person to whom the records pertain is not informed. This means that if 
the FBI serves a FISA warrant on a bank or hospital, the bank president 
or hospital director would know about it, but the customers or patients 
whose records had been seized would know nothing at all.
  Before the PATRIOT Act, if the FBI wanted to get one of these 
warrants, they had to show a judge specific and articulable facts that 
the records pertained to a terrorist or a spy. The PATRIOT Act lowered 
the standard, so now the FBI simply has to assert that the records are, 
in their view, relevant to a terrorism inquiry. To protect innocent 
Americans, the business records provision needs to be modified in 
several ways.
  First, the Congress should require that the application for a FISA 
warrant include a statement of facts explaining why the records are 
relevant to an investigation. Congress should also raise the standard 
for the most sensitive type of records. The ``relevance'' standard may 
be appropriate for a hotel or car rental record, but it may be 
necessary to require the FBI to show hard evidence before giving access 
to more sensitive records such as medical records.
  Finally, there must be an increase in the reporting that is done in 
this area. Congress's duty to look out for abuses of the PATRIOT Act is 
often a challenging one. Little reporting is required on the use of 
some provisions. Details regarding the use of the PATRIOT Act are 
reported, even when reporting is not required. When there is a report, 
the information is often classified. National security investigations 
often need to be conducted in secret, but revealing how often 
particular techniques are used does not make them less effective. 
Congress needs this information to perform its constitutional 
responsibilities, and the fact is too often Congress has been doing 
oversight over the intelligence community in the dark.
  The Intelligence reform bill that passed a few months ago tried to 
fill several of the reporting gaps, but there are others that need to 
be closed as the PATRIOT Act is reauthorized. These reports should also 
be made public, to the maximum extent possible so that the American 
people can know all that is safely to be known about FBI activity under 
the law.
  One of the major reporting gaps I am concerned about involves what 
the FBI calls discreet inquiries that the agency uses to obtain library 
records. The FBI Director, Mr. Mueller, has testified before several 
Senate committees that, while FISA warrants could be used to obtain 
people's library records, this has never been done. But the FBI 
director went on to say that the Agency does obtain library records 
through what he called discreet inquiries. So I think that the American 
people deserve to know what a discreet inquiry is. The American people 
deserve to know how often they are used. And I have asked the FBI to 
get me this information.
  Over a month later, despite multiple requests by the staff of the 
Intelligence Committee, the FBI has still not provided an answer to the 
question. Suffice it to say, the longer the Agency waits, in terms of 
answering the question of how they obtain library records, the more 
Americans believe that the Agency is stepping over the line and into 
the lives of law-abiding citizens. Those most directly affected by the 
library records provision have been expressing strong concerns. The 
American Library Association recently wrote me:

       ``[D]iscreet inquiries'' by the FBI put our librarians at 
     risk of breaking state laws if agents approach them for 
     information without subpoenas or other properly executed 
     legal documents and intimidate them into complying with the 

  I ask unanimous consent the letter from the American Library 
Association be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 American Library Association,

                                     Washington, DC, May 25, 2005.
     Hon. Ron Wyden,
     U.S. Senate,
     Washington, DC.
       Dear Senator Wyden: On behalf of the over 65,000 members of 
     the American Library Association (ALA) I am writing to 
     express our appreciation for your efforts to seek further 
     information about the nature and scope of FBI investigations 
     into library records. We thank you for your hard work 
     examining law enforcement activity in libraries under Section 
     215 of the USA PATRIOT Act, national security letters, and 
     ``discreet inquiries'' without, apparently, warrants or 
       Librarians across the country, in all kinds of libraries, 
     take their jobs as public servants very seriously. We are as 
     concerned about our Nation's security as any other sector of 
     the American public. At the same time, the issue of privacy 
     and the confidentiality of library records is a long-held and 
     deep principle of our profession. The American public values 
     this principle as well: forty-eight States have laws 
     protecting the confidentiality of library records, and the 
     other two States have attorney general opinions doing so.
       As you know, both the FBI and the Department of Justice 
     have reported that there has been ``zero'' use of Section 215 
     in libraries. However, our office is aware, at least 
     anecdotally, of FBI inquiries made using other methods in 
     what do not appear to be normal criminal or civil 
     investigations. To determine the extent of these inquiries 
     ALA has begun its own research regarding the scope of law 
     enforcement investigations of library patrons and their 
     reading records.
       Leaders of ALA have met with Attorney General Gonzales and 
     FBI Director Mueller to discuss our concerns about these 
     library-related investigations as well as to discuss our 
     ongoing research. We are seeking aggregated data to 
     understand better the breadth of FBI investigations and the 
     impact the investigations have on library users.
       We very much appreciate your questions seeking further 
     information from Director Mueller about these inquiries. 
     Specifically, we would like to know:
       What exactly is a ``discreet inquiry?''
       Do these inquiries require a subpoena and are they subject 
     to any judicial oversight?
       How many ``discreet inquiries'' have been made in the last 
     four years? 1 year? In general, what kind of evidence was 
       Have these inquiries been related only to foreign 
     intelligence investigations or have they been used in non-
     intelligence investigations?
       What are the procedures and authorization for such 
       Are there pertinent FBI guidelines and related oversight 
     procedures for assessing ``discreet inquiries'' and if so, 
     are there aggregated public reports on this type of inquiry?

[[Page S6082]]

       The American Library Association holds that privacy is 
     essential to the exercise of free speech, free thought, and 
     free association and that, in a library, the subject of 
     users' interests should not be examined or scrutinized by 
     others. Whether there has been one F.B.I. inquiry at 
     libraries on the reading habits of patrons or thousands, the 
     threat to the confidentiality of library records chills 
     library use by the public and threatens confidentiality in 
     other venues where privacy is the essence of the service/
       Thank you again for all your work on issues surrounding law 
     enforcement investigations in libraries and on the other 
     important provisions of the USA PATRIOT Act and related 
     regulations that affect the privacy and civil liberties of 
     the public. We support your efforts to address both the need 
     for effective law enforcement and the civil liberties of the 
     American public in an appropriate and proportional manner.
                                                 Lynne E. Bradley,
                          Director of OGR, ALA--Washington Office.

  Mr. WYDEN. Mr. President, no one is saying the FBI should not be 
allowed to conduct voluntary interviews. A voluntary interview is 
certainly a legitimate and often nonintrusive investigative technique. 
But the FBI agents must not be out there in effect demanding the 
records of our citizens without following proper legal procedures. 
Since the FBI has been so reluctant to discuss the activities relating 
to these discreet inquiries of libraries, the PATRIOT Act should 
require the Bureau to report on this topic. At a minimum, they should 
be required to tell the Congress how this information is being used so 
the Congress can determine whether the FBI's use of this provision is 
  In several other areas of the PATRIOT Act there should be 
modifications. A major problem area, for example, is section 505 that 
deals with national security letters. National security letters are 
another way for FBI agents to obtain records. Unlike FISA warrants, 
national security letters do not require the approval of a judge. The 
FBI has said the national security letters can be appealed, but the 
current PATRIOT Act does not specifically discuss this. It is often 
difficult for recipients to learn more about the requests in their 
letters and their right to refuse since they are usually barred from 
discussing the letter with anyone, including a lawyer.
  In the recent case of Doe v. Ashcroft, the Federal judge found that 
the FBI had abused this authority by using a national security letter 
to demand records from an Internet service provider without telling the 
provider that the letter could be challenged or even that it could be 
discussed with a lawyer. Congress should reform the national security 
letter statute to make it clear that national security letters can be 
challenged, that they can be discussed with a lawyer, and that anyone 
who receives one has the right to be informed as to their rights. 
Congress certainly ought to consider adding sunset to this provision.
  Section 206 authorizes the FBI to use roving wiretaps in national 
security investigations. The roving wiretap authority allows the FBI to 
tap not just a particular phone but any phone the person being targeted 
might use. Unlike criminal investigations, there is not even a 
requirement for the FBI to make sure that the person being investigated 
is using a line. If a suspected terrorist worked in a warehouse, roving 
wiretap authority could be used to tap a pay phone in that warehouse, 
and every person who used that phone could have their conversations 
secretly recorded. This provision, in my view, again, should be 
modified, and the sunset should definitely be renewed so the Congress 
has more time to investigate how it has been used.
  Finally, some of the tricky wording in several places of the PATRIOT 
Act needs to be clarified. A provision that looks like a safeguard for 
civil liberties may expose Americans to unfair scrutiny when they 
exercise their rights. In several places, the PATRIOT Act prevents the 
use of various investigative techniques when the investigation is based 
solely on the first amendment activities of U.S. persons. Our 
colleague, Senator Levin, has pointed out that simply saying ``solely'' 
without clarification can create problems and seems to indicate that it 
is acceptable to investigate Americans largely or even primarily on the 
basis of their first amendment activities. I am not convinced this 
safeguard is actually a safeguard. I hope it will be clarified and 
strengthened throughout the consideration of the PATRIOT Act.
  The Intelligence Committee may finish drafting a reauthorization of 
the PATRIOT Act in the near future. My sense is the Judiciary Committee 
will move shortly afterward. It is possible other committees may wish 
to weigh in on these portions of the PATRIOT Act that fall under their 
jurisdiction. As we go forward in this debate, as the Congress proceeds 
to try to walk on that high wire, striking a balance between fighting 
terrorists ferociously while protecting our civil liberties, I simply 
say to the Senate this afternoon that the Senate can do better. It is 
possible, for example, to give the FBI additional emergency power, 
power that should address the concerns they have raised in the open 
hearings, without removing the independent checks so necessary in 
circumstances that are not emergencies.
  The bottom line is, let's make sure law enforcement has the tools 
that are necessary to fight terrorism, to protect the people of our 
country, but not hang up a sign on this PATRIOT Act reauthorization 
that says: You hereby have a right to go on any fishing expedition you 
  The Senate can do better. The job of creating a more balanced 
protector of security and civil liberties still has work ahead of us. I 
look forward to working with our colleagues on a bipartisan basis to 
achieve those ends.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.