On How the Patriot Act Deal With the White House Falls Short on Protecting Freedoms

February 10, 2006

The White House has agreed to only a few minor changes to the Patriot Act conference report -- the same report that could not get through the Senate back in December. These changes do not address the major problems with the Patriot Act that a bipartisan coalition has been trying to fix for the past several years. Senator Feingold strongly opposes this deal, and any reauthorization of the Patriot Act that does not protect the rights and freedoms of law-abiding Americans with no connection to terrorism.

Critical Areas Where the Deal with the White House Falls Short:

Section 215 (“Library and Business Records”)

This deal does not prevent the government from obtaining the library, medical and other sensitive business records of people with no link to suspected terrorists.

Background: The deal struck with the White House leaves this provision unchanged from the conference report that failed to get through the Senate in December. The Senate bill that passed by unanimous consent in July 2005 would have ensured that the government cannot obtain the sensitive, personal records of Americans with no connection whatsoever to a terrorist or spy or their activities. The conference report replaces the Senate test with a low standard – the records just have to be “relevant” to a terrorist investigation, which is not adequate protection against a fishing expedition.

Gag Orders

This deal does not provide meaningful judicial review of the gag orders associated with Section 215 business records orders and National Security Letters.

Background: People who receive demands for documents under the Patriot Act are subject to a “gag order.” The deal includes a provision allowing recipients of Section 215 gag orders to challenge those orders in court, but it does not guarantee meaningful judicial review. Under the deal, review of business record orders could only take place after a year has passed and could only be successful if the recipient proves that the government has acted in bad faith. The deal ignores the serious First Amendment problem with the gag rule under current law.

“Sneak and Peek” Searches

This deal does not ensure that when government agents secretly break into the homes of Americans to do a so-called “sneak and peek” search, they tell the owners of those homes in most circumstances within seven days, as courts have said they should, and as the Senate bill did.

Background:This provision remains unchanged from the conference report that failed to get through the Senate in December.