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
were.
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
they
[[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
granted.
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
renewal.
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
request.
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
subpoenas.
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
uncovered?
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
inquiries?
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/
relationship.
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.
Sincerely,
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
appropriate.
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
desire.
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.
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