USA Patriot Act Additional Reauthorizing Amendments Act of 2006

USA PATRIOT ACT ADDITIONAL REAUTHORIZING AMENDMENTS ACT OF 2006 -- (House of Representatives - March 07, 2006)

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Mr. SCOTT of Virginia. Madam Speaker, I thank the gentleman for yielding me time.

Madam Speaker, let me just first say I believe it is inappropriate to even discuss the PATRIOT Act until we have had hearings to find out what is going on with the NSA wiretaps. The PATRIOT Act could be, in fact, irrelevant if you are wiretapping at will, as the President has suggested; and we want to know exactly what is going on with those wiretaps before we do anything else. But this bill is on the floor, so we have to discuss that.

Unfortunately, I have to oppose this bill because it still continues to require no finding of individualized suspicion as a trigger to the secret record search powers in sections 215 and 505. That means that innocent Americans can have their sensitive records searched without any showing that they are an agent of a terrorist organization or scheming with terrorist organizations or doing anything illegal. Instead, this continues the problems in the original PATRIOT Act. This bill addresses several of the problems, but doesn't actually solve them.

One thing it helps is the fact that the recipient of a national security letter will be able to consult a lawyer without having to notify the government of the attorney's name. This is merely cosmetic, because that has actually been the recent practice.

In terms of these interstate letters, the bill addresses the right to challenge the gag order which applies to the secret orders under 215, as well as the national security letters; but it says that you can't make the challenge for 1 year. It codifies a 1-year period during which you can't do anything. That makes the present law worse. Presumably, you could go in right away to challenge the NSA and see the secret orders; but now you have to wait a year, and at the end of the year, you can't do anything, because all the government has to do is certify that the gag order needs to stay in effect. The judge has no discretion as to overturning that certification. So although this issue is addressed, it is actually made worse.

Finally, Madam Speaker, there is a question on the protection of privacy of library patrons in terms of the Internet service providers as to whether or not the library is an Internet service provider. The language is a little bit confusing.

Madam Speaker, I would enter into the RECORD a colloquy between the Senator from Illinois, Mr. Durbin, and the Senator from New Hampshire, Mr. Sununu, the chief patron of the bill. Assuming that he means what he said he meant on the floor of the Senate, we don't have a problem with it. So I would like to ask unanimous consent to introduce into the RECORD the colloquy between the two Senators as to what section 5 actually means.

PARLIAMENTARY INQUIRY

Mr. SENSENBRENNER. Madam Speaker, reserving the right to object, I have a parliamentary inquiry.

The SPEAKER pro tempore (Mrs. Biggert). The gentleman will state it.

Mr. SENSENBRENNER. Madam Speaker, is it in order to introduce into the RECORD in this body debate that has been taken in the other body?

The SPEAKER pro tempore. By unanimous consent, it may be done.

Mr. SENSENBRENNER. Further reserving the right to object, let the record be clear that as manager of the bill, I do not necessarily agree with the debate that was taken between the two Senators in the other body.

But if the gentleman from Virginia wishes to insert that in the RECORD for its hortatory nature, I will not object.

Madam Speaker, I withdraw my reservation.

The SPEAKER pro tempore (Mrs. Biggert). Without objection, it will be entered.

There was no objection.

Mr. SCOTT of Virginia. Madam Speaker, I would like to introduce this. It represents the intent of the chief sponsor of the bill, which we agree with, although I understand the manager of the bill in the House may not.

Colloquy Between Senators John Sununu and Dick Durbin on Section 5 of S. 2271, February 16, 2006

Mr. DURBIN. Mr. President, at this moment, I wish to address the bill pending before the Senate, and that is S. 2271.

I commend Senator John Sununu of New Hampshire, who is here in the Chamber. Were it not for his hard work, we would not be here today. For weeks, while many of us were doing other things back home, Senator Sununu was working assiduously with the White House to find a way to address some very vexing and challenging issues when it came to modifying the PATRIOT Act. He has done an excellent job. I commend him and tell him that I have enjoyed working with him over the last 2 years, where we have crossed party lines and tried to find ways to keep the PATRIOT Act as a tool to make America safe but also at the same time to protect our basic liberties.

Every step of the way, as we considered changes to the PATRIOT Act, we have been supported by our Nation's librarians. These are wonderful men and women--professionals--who are dedicated to the libraries across America, which are such rich resources. I thank the librarians of America, especially for their heroic efforts to amend the PATRIOT Act in a responsible way and, equally as important, to defend our Constitution.

I understand that section 5 of Senator Sununu's bill, S. 2271, will help protect the privacy of Americans' library records. I ask the indulgence of the Chair that I might enter into a colloquy with Senator Sununu relative to section 5.

I would like to ask Senator Sununu, through the Chair, if he could explain to me what section 5 will accomplish.

Mr. SUNUNU. Mr. President, I am pleased to be on the floor today and pleased to be able to see the light at the end of the tunnel on PATRIOT reauthorization, thanks to the work of Senator Durbin and others. We have legislation before us that will make the adjustments to the PATRIOT Act reauthorization conference report mentioned by the Senator from Illinois. He specifically mentioned section 5 of our legislation. As he began to describe, section 5 is intended to clarify current law regarding the applicability of National Security Letters to libraries.

A National Security Letter is a type of administrative subpoena, a powerful tool available to law enforcement officials, to get access to documents. It is a document signed by an FBI agent that requires a business to provide certain kinds of personal records on their customers to the Government. These subpoenas are not approved by a judge before being issued.

What we did in this legislation is add clarifying language that states that libraries operating in their traditional functions: lending books, providing access to digital books or periodicals in digital format, and providing basic access to the Internet would not be subject to a national security letter. There is no National Security Letter statute existing in current law that permits the FBI explicitly to obtain library records. But, as was indicated by the Senator from Illinois, librarians have been concerned that existing National Security Letter authority is vague enough so that it could be used to allow the Government to treat libraries as they do communication service providers such as a telephone company or a traditional Internet service provider from whom consumers would go out and get their access to the Internet and send and receive e-mail.

Section 5 clarifies, as I indicated, that a library providing basic Internet access would not be subject to a national security letter, simply by virtue of making that access available to the public.

Mr. DURBIN. I thank the Senator from New Hampshire. It is my understanding that most public libraries, as he explained, offer Internet access to the public. Because of this, they are concerned that the Government might consider them to be communications service providers similar to the traditional providers, such as AT&T, Verizon, and AOL.

So if I understand it correctly, your bill clarifies that libraries, simply because they provide basic Internet access, are not communications service providers under the law and are not subject to national security letters as a result. I ask the Senator from New Hampshire, through the Chair, is that a correct conclusion?

Mr. SUNUNU. Mr. President, I absolutely believe that the conclusion of the Senator from Illinois is correct, A library providing basic Internet access would not be subject to a National Security Letter as a result of that particular service and other services that are very much in keeping with the traditional role of libraries.

Some have noted or may note that basic Internet access gives library patrons the ability to send and receive e-mail by, for example, accessing an Internet-based e-mail service. But in that case, it is the Web site operator who is providing the communication service--the Internet communication service provider itself--and not the library, which is simply making available a computer with access to the Internet.

So I certainly share the concerns of the Senator from Illinois and others who have worked very long and hard on this and other provisions. I think it does add clarity to the law as he described, in addition to providing other improvements to the PATRIOT Act as they relate to civil liberty protections. All along, this has been about providing law enforcement with the tools that they need in their terrorism investigations while, at the same time, balancing those powers with the need to protect civil liberties. I think, in the legislation before us, we have added clarity to the law in giving access to the courts to object to section 215 gag orders and, of course, striking a very punitive provision dealing with counsel and not forcing the recipient of a National Security Letter to disclose the name of their attorney to the FBI.

All of these are improvements to the underlying legislation, and I recognize that we had a overwhelming, bipartisan vote today to move forward on this package. I anticipate that we will have similar bipartisan votes in the days ahead to conclude work on this legislation and get a much improved PATRIOT Act signed into law.

Mr. DURBIN. I thank the Senator from New Hampshire, as well, because that clarification is important. So if a library offers basic Internet access, and within that access a patron can, for example, send and receive e-mail by accessing an Internet-based e-mail service such as Hotmail, for example, that does not mean the library is a communications service provider and, therefore, it does not mean that a library could be subject to these national security letters of investigation.

By way of comparison, a gas station that has a pay phone isn't a telephone company. So a library that has Internet access, where a person can find an Internet e-mail service, is not a communications service provider; therefore, it would not fall under the purview of the NSL provision in 18 U.S.C. 2709. It is a critically important distinction. I thank the Senator from New Hampshire for making that clear and for all of his good work on this bill.

Libraries are fundamental to America. They symbolize our access to education. They are available to everyone, regardless of social or economic status.

When we first introduced the SAFE Act, I went to the Chicago Public Library to make the announcement. The library was established in 1873, and for over 130 years it has given the people of the City of Chicago the ability to read and learn and communicate. Here is what the mission statement says at that public library:

We welcome and support all people and their enjoyment of reading and pursuit of lifelong learning. We believe in the freedom to read, to learn, and to discover.

We have to ensure, in the Senate and in Congress, in the bills that we pass, including the PATRIOT Act, that this freedom to read, learn, and discover is preserved for our children and our grandchildren.

Mr. President, I yield the floor and I suggest the absence of a quorum.

Mr. SENSENBRENNER. Madam Speaker, I yield 1 1/2 minutes to the gentleman from Georgia (Mr. Gingrey).

Mr. GINGREY. Madam Speaker, I rise today to support the continued effort to reauthorize the United States PATRIOT Act. It is well overdue for this Congress to ensure those trying to protect the American people have all the tools necessary to combat terrorism.

With the passage of this bill, Congress will have demonstrated its overwhelming desire to protect our civil liberties while protecting our homeland. We have taken every precaution to ensure an overzealous government cannot overstep its constitutional responsibility.

Among other provisions, this legislation allows a person receiving a FISA production order to produce any tangible item that they deem necessary to challenge that order before a district court.

This bill also removes libraries from the definition of a wire or electronic service communication provider for purposes of granting the national security letters, unless, unless the library actually provides electronic communication service.

These are commonsense amendments that will continue to fine-tune the balance between our homeland security and our constitutional rights as American citizens. I thank Chairman Sensenbrenner for yielding me the time and for his outstanding work on this vital issue.

Mr. CONYERS. Madam Speaker, I yield myself 15 seconds.

Madam Speaker, just to keep the record straight, in 1986, national security letters were limited to terrorists. The PATRIOT Act lowered the standard to anything relevant to an investigation, and now over 30,000 are issued every year. The sham fix does not help us at all.

Madam Speaker, I yield 3 minutes to the gentleman from New York (Mr. Nadler).

Mr. NADLER. Madam Speaker, we are engaged in a serious war with terrorism. But we are going after the wrong targets. We are not protecting ourselves, but we are attacking our liberties. We are not doing anything adequate to secure the loose nuclear materials all over the former Soviet Union before they are smuggled to al Qaeda to make atomic bombs.

We search only 5 percent of the 9 million shipping containers that come into our country every year, any one of which could contain a weapon of mass destruction.

But what are we doing? Well, the President has orchestrated a secret conspiracy to violate the criminal law by ordering clearly illegal domestic surveillance.

And now we renew the PATRIOT Act with some of the worst provisions only cosmetically changed and continuing to threaten civil liberties. Section 215 allows the government to obtain business reports about people, including library, medical and various other types of business records, as long as they are ``sought for a terrorism investigation.''

The government simply has to come up with a statement of facts showing there are reasonable grounds to believe that tangible things sought are relevant to an authorized investigation. Relevant? Almost anything can be relevant.

To make matters worse, the recipients of a section 215 order are subject to an almost unreviewable automatic gag order. Now we are told, under this bill, that judicial review can take place after a year. At best. A year? And in order to prevail in challenging a gag order, a certification by the government that disclosure would harm national security or impair diplomatic relations would be conclusive, unless shown it would be in bad faith.

Conclusive? No evidentiary showing, no evidentiary test. That is absurd. That means there is no test at all. Section 505 authorizes FBI field office directors to collect in secret almost limitless sensitive personal information from entities simply by issuing national security letters.

The FBI can simply say they want your private and sensitive information and they can get it. This is very much like the writ of assistance the British used to grant in 1761 that helped start the American Revolution. Under the conference report, recipients would theoretically have the ability to challenge these gag orders, but again that will be virtually impossible.

As with section 215, the government's assertion that the gag order is necessary to protect the national security would be a conclusive presumption that the government is telling the truth that the gag order could stand.

You can only challenge the government's bad faith. This automatic permanent gag rule very likely violates the first amendment, as two courts have already found. We ought to have real protections. We ought to have some procedural safeguards in the PATRIOT Act such as our entire American tradition demands.

The conference report does not replace the section 215 showing of relevance standard with the three-part test that was the basis of the Senate compromise which provided some meaningful due process protections. It should.

The conference report does not restore the section 505 previous standard of specific and articulable facts connecting the records sought to a suspected terrorist. It should.

The conference report does not allow recipients of section 215 orders and national security letters a meaningful court challenge to the gag order. It should.

And, finally, the conference report does not sunset section 505, national security letters, in 4 years. It should.

I very much urge defeat of this PATRIOT Act reauthorization so that we can mend the bill so it doesn't destroy our constitutional liberties. Mend it, not end it. But this doesn't help.

Mr. SENSENBRENNER. Madam Speaker, I yield 2 1/2 minutes to the gentleman from Florida (Mr. Stearns).

Mr. STEARNS. Madam Speaker, I would just say to this side, this bill has gone through so many iterations, and so many times we have looked at this. It includes 30 additional civil liberties safeguards. And, you know, I admit that your fighting against this bill has probably improved it a little bit.

But at this point, we have done so much to help it. I think it is a very good bill. I commend the author, Mr. Sensenbrenner, for his patience all during this process.

These new civil liberty safeguards include allowing recipients of search requests or national security letters to seek legal counsel for appealing the decision to the FISA court and mandated reporting to the public and Congress on the use of national security letters, data-mining and delayed-notice search warrants.

This is a vigilant protector of civil rights and national security, and it is the right balance. It is critical that we pass this bill today. I would say in passing that part of the PATRIOT Act was a cargo amendment that I included. I thank the chairman for allowing me to do that.

In Florida alone, local and State agencies joined together and developed a unified strategy for prevention and enforcement against cargo theft, resulting in about a 25 percent decrease in cargo thefts. Unfortunately, my colleagues, the FBI estimates, and these are only estimates because we do not have any way to track this information, overall national loss from cargo theft remains at almost $6 billion annually.

The interagency cooperation must be expanded from the State level to include nation-wide enforcement. Cargo theft imperils our Nation's security, and data indicates profits from cargo theft often go to organized crime or to terrorist activities.

So for that reason, for 2 years I have been working on this amendment, which is included as part of the PATRIOT Act, to, first of all, combat this crime by increasing mandatory minimum sentencing and directing consolidation of cargo theft trend data--simple collection of this cargo theft trend data into the federal Uniform Crime Reporting system, so in fact that system we have a better understanding of it, and we can coordinate between different law enforcement agencies.

These are vital steps to fight this growing nation-wide threat, and I am pleased to have it included in the PATRIOT Act.

I ask my colleagues to realize the amount of work that has gone into this bill. It is absolutely necessary we pass it. I urge my colleagues to vote for it.

Thank you, Mr. Speaker and Mr. Chairman for your efforts to pass this critical legislation.

Our founding fathers knew our young Nation faced dangerous security challenges from its amorphous and expansive border and aggressive European powers. With that in mind, Thomas Jefferson wrote, ``The price of freedom is eternal vigilance.''

The situation confronting us today mirrors that of our founders. Our border is even larger and more difficult to control. With additional points of entry at every airport, prohibiting entry of those intent on doing harm is even more complex. Advanced technologies allow individuals across the oceans to coordinate attacks within our cities. This is an eventuality impossible for our founding fathers to foresee, and yet necessary for us to combat. We must keep pace with the changing environment. The PATRIOT Act equips us to do that by breaking down communication barriers between law enforcement and intelligence agencies, a weakness identified by the 9/11 Commission.

In Florida, law enforcement increased interagency cooperation with impressive results. In 2001, local and state agencies joined together and developed a unified strategy for prevention and enforcement against cargo theft, resulting in a 25% decrease in cargo thefts. Unfortunately, the FBI estimates overall national loss from cargo theft remains more than $6 billion annually. Interagency cooperation must be expanded from the state level to include nationwide enforcement. Cargo theft imperils our national security, and data indicates profits from cargo theft often funds organized crime or terrorist activities. For two years, I have worked to pass legislation combating this crime by increasing mandatory minimum sentences and directing consolidation of cargo theft trend data into the federal Uniform Crime Reporting system to better coordinate enforcement activities. These are vital steps to fight this growing nationwide threat, and I am pleased they were included in this PATRIOT Act reauthorization.

As we debate these amendments to the PATRIOT Act, I hear echoes of another founding father's words. Benjamin Franklin's assertion that, ``They who give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety,'' resounds as an admonition to those of us standing in this chamber to ensure proper oversight and protect civil liberties.

This legislation includes 30 additional civil liberties safeguards. These include: allowing recipients of search requests or National Security Letters to seek legal counsel for appealing the decision to the FISA Court, and mandated reporting to the public and Congress on the use of National Security Letters, data mining, and delayed notice search warrants.

As vigilant protectors of national security, and critical guardians of civil liberties, with full realization of the immediate threat we face, I call upon my colleagues to vote in favor of this bill. Due diligence has been observed ..... investigated ..... executed ..... and critiqued. Now it is time to pass this Act.

Mr. CONYERS. Madam Speaker, I yield 3 minutes to the gentleman from Vermont (Mr. Sanders).

Mr. SANDERS. Madam Speaker, this is an extremely important debate. I want to begin by expressing my disappointment that this bill is being considered as a suspension along with the naming of post offices. Well, you know what, this is not a post-office-naming bill. This is a bill that deals with constitutional rights. It is an issue about which seven States in this country have raised concerns, as have hundreds of municipalities from one end of America to the other.

This is a bill that should allow for amendments and serious debate and not be considered simply as a suspension.

Madam Speaker, many Americans are wondering how it could be that in terms of national security, our President believes that it is okay for a foreign government with terrorist ties to run major ports in America; that that is okay. But when some of us say that maybe kids or just ordinary American citizens should be allowed to read the books that they want in libraries without being investigated by government agents, without any evidence that they are engaged in terrorist activities or have any ties to terrorism, that we cannot protect.

Madam Speaker, there is growing concern in this country with regard to the state of our civil liberties and our constitutional rights. Whether it is the President of the United States engaging, through the NSA, in illegal wiretaps without court orders, or the widespread use of national security letters, millions of Americans, whether they are progressives, whether they are conservatives or in between, are very concerned about Big Brother investigating the private lives, the private reading habits of ordinary Americans.

Madam Speaker, in June of 2005, I offered an amendment that passed with a very strong bipartisan vote, which said that libraries and book stores should be exempt from section 215, that it is wrong for the government to be able to access the reading records or the book purchases of innocent Americans unless they can establish that those individuals have ties with terrorism.

All of us want our government to be vigorous in protecting the American people against terrorism. But we want to do that in a way that does not undermine the constitutional rights of the American people. Unfortunately, the Republican leadership took that amendment, which passed with strong bipartisan support, and they tossed it out. They rejected the will of a vast majority of the Members of the House of Representatives and did not incorporate that language into the final bill.

Madam Speaker, this is an issue of huge consequence. Fighting terrorism is an enormously important issue, but we can and must do it without undermining the constitutional rights of the American people.

Mr. CONYERS. Madam Speaker, I yield 45 seconds to the gentleman from Virginia (Mr. Scott).

Mr. SCOTT of Virginia. Madam Speaker, as I indicated before, we need to have hearings on the NSA wiretaps. The question there is not whether or not the wiretaps can take place, but whether or not they take place in the concept of checks and balances.

Also, we need to know what kinds of wiretaps are going on, and it would be nice to have hearings on that before we consider the PATRIOT Act. But when one of the previous speakers talked about the due process involved, we have to remind people that the due process is not for the person whose records are being gathered, but due process on the library that does not have enough money to operate the library, whether or not they have a right to go out and hire a lawyer to protect somebody else's rights.

The person affected does not have any rights in this situation. It is just the library and their own good will. If they want to go out and protect somebody's rights, they have that opportunity. These are extraordinary rights, police rights and police powers; and we need to make sure that people actually understand what is going on here.

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