USA PATRIOT Act Reauthorization in Brief
CRS Report for Congress
USA PATRIOT Act Reauthorization in Brief
Charles Doyle
Senior Specialist
American Law Division
Summary
Both Houses have approved proposals to reauthorize USA PATRIOT Act sections
scheduled to expire at the end of the year. The House passed H.R. 3199 on July 21,
2005, 151 Cong. Rec. H6307; the Senate, S. 1389 on July 29, 2005 (although the Senate
substituted its language for that of H.R. 3199 and then passed H.R. 3199; for
convenience the Senate version of H.R. 3199 is referred to as S. 1389 here). This is a
sketch of those bills and how they differ. Their common provisions deal mostly with
expanded federal authority under the Foreign Intelligence Surveillance Act (FISA) and
the Electronic Communications Privacy Act (ECPA). The bills make permanent all but
two of the temporary USA PATRIOT Act sections. They postpone the expiration of the
two, dealing with FISA roving wiretaps and the so-call library or business records
authority. In these two, the national security letter statutes, and some of the other USA
PATRIOT Act provisions make sometimes parallel and sometimes individualistic
adjustments. H.R. 3199 contains a number of features not found in S. 1389 including
a first responder grant program, new capital offenses and adjusted capital punishment
procedures, sections that in large measure replicate the seaport crimes portions of S. 378
(as reported), a substantial expansion in federal forfeiture authority in terrorism and
money laundering cases, and expansion of federal wiretapping authority to embrace
investigations into twenty crimes for which the authority did not previously exist. A
more detailed version of this report is available as CRS Report RL33027, USA
PATRIOT Act: Background and Comparison of House- and Senate-approved
Reauthorization and Related Legislative Action.
Both House and Senate bills make the following expiring sections of the USA
PATRIOT Act permanent without amendment: Sec. 201 (ECPA wiretapping in certain
terrorism investigations), Sec. 202 (ECPA wiretapping in computer fraud and abuse
investigations), Sec. 203(d) (law enforcement sharing of foreign intelligence information
notwithstanding any other legal restriction), Sec. 204 (technical exception for foreign
intelligence pen register/trap & trace device use), Sec. 209 (seizure of stored voice mail
by warrant rather than ECPA order), Sec. 217 (law enforcement access to computer
trespassers’ communications within the intruded system), Sec. 218 (FISA wiretap or
search orders with an accompanying law enforcement purpose (removal of the wall of
separation between criminal catchers and spy catchers)), Sec. 220 (nation-wide service of
Congressional Research Service ˜ The Library of Congress
court orders directed to communication providers), Sec. 223 (civil liability and
disciplinary action for certain ECPA or FISA violations), Sec. 225 (civil immunity for
assistance in executing a FISA order)(H.R. 3199, §102; S. 1389, §9(a)).
Both bills also make permanent section 6603 of the Intelligence Reform and
Terrorism Prevention Act, which otherwise expires on December 31, 2006, and which
temporarily clarifies and expands federal proscriptions on providing material support to
terrorists, e.g., 18 U.S.C. 2339A, 2339B (H.R. 3199, §104; S. 1389, §9(c)). They both
postpone — until December 31, 2009 in the Senate bill and until December 31, 2015 in
the House bill — the expiration of section 6001 of the Intelligence Reform and Terrorism
Prevention Act, which expires on December 31, 2005, and which makes FISA orders
available in the investigation of foreign international terrorists without knowing whether
they are agents or members of a particular group of international terrorists, (H.R. 3199,
§103; S. 1389, §9(b)).
Both bills make section 207 permanent but amend it in essentially the same manner
(H.R. 3199, §§102, 106; S. 1389, §§9(a), 3). Section 207 temporarily elongates the
permissible life-time of FISA surveillance and physical search orders (and extensions)
directed at the officers and employees of foreign powers, 50 U.S.C. 1805(e), 1824(d).
The bills make the change permanently applicable to any agent of a foreign power who
is not a “U.S. person,” and elongates the permissible lifetime of FISA pen register/trap
and trace orders and extensions when the effort is likely to produce foreign intelligence
information other than that which concerns a “U.S. person,” proposed 50 U.S.C. 1842(e).
As for individualized treatment, the bills both make permanent temporary section
203(b) of the USA PATRIOT Act which allows federal law enforcement officials to share
with certain other federal officials foreign intelligence information obtained during a court
authorized wiretap, 18 U.S.C. 2517(6) (H.R. 3199, §102; S. 1389, §9(a)), but the House
bill alone insists that the authorizing court be informed of the disclosure, H.R. 3199,
§105. The two bills each (1) make permanent section 212 which permits communications
service providers to voluntarily provide authorities with the contents of stored
communications or communication transaction information (without a warrant or
customer consent) in emergency cases, 18 U.S.C. 2702(b)(8), (c)(4), (H.R. 3199, §102;
S. 1389, §9(a)), and (2) require annual reports on the extent of voluntary good faith
disclosures of stored communications under 18 U.S.C. 2702(b)(8) (H.R. 3199, §108); S.
1389, §4(a)). But the Senate bill alone removes the requirement that the danger be
immediate from the emergency communications record disclosure provisions of 18 U.S.C.
2702(c)(4) (S. 1389, §4(b)). They both make permanent section 214 which temporarily
expressly expands FISA pen register/trap and trace authority to electronic
communications and enlarges the range of permissible targets, (H.R. 3199, §102; S. 1389,
§9(a)), but S. 1389 (§6) alone modifies its provisions by authorizing FISA pen
register/trap and trace orders that direct service providers to supply intelligence
investigators with related customer information and by requiring the Attorney General to
provide the Judiciary Committees with full reports on the use of the FISA pen
register/trap and trace authority, proposed 50 U.S.C. 1842(d)(2)(C), 1846(a).
The bills take different approaches in their amendments relating to four other USA
PATRIOT Act sections: Sec. 206 (assistance in conducting roving FISA wiretaps), Sec.
213 (delayed notification of sneak and peek), Sec. 215 (FISA tangible items access
orders), and Sec. 505 (national security letters (NSLs)).
Section 206 of the USA PATRIOT Act, a temporary section whose expiration date
both bills postpone, allows FISA courts to include within a FISA surveillance order a
general direction for third party assistance, rather than a direction addressed to a particular
communications provider or the like, when the target’s actions may preclude specific
identification, 50 U.S.C. 1805(c)(2)(B). The two bills differ thus:
S. 1389H.R. 3199
Postpones sunset until December 31, 2009Postpones sunset until December 31, 2015
(sec. 9).(sec. 102(b)).
Requires that the target of a FISA Requires that the FISA court’s finding that
surveillance order be described withthe target’s action may thwart identification
particularity when the target’s identity andof assistants be based on specific facts in
the nature and location of the target place orthe application (sec. 109(a)).
facilities are unknown (sec. 2(a)).
Within 10 days of when the target’s actionWithin 15 days of when the target’s action
requires relocation of the surveillance’srequires relocation of the surveillance’s
focus, the issuing FISA court must befocus, the issuing FISA court must be
advised and provided with additionaladvised and provided with additional
justification and minimization informationjustification and information on the number
(sec. 2(b)). of surveillances conducted or planned (sec.
Directs that required FISA reports toNo comparable provision.
Congressional Intelligence Committees be
expanded to include roving wiretap
information and be provided to the
Judiciary Committees as well (sec.2(c)).
Section 213 of the USA PATRIOT Act is not a temporary section. It allows federal
courts to permit delayed notice of the execution of a search warrant for a reasonable
period time when contemporaneous notice might have adverse consequences such as the
flight of a suspect, the loss of evidence, physical injury, jeopardy to an investigation or
delay of a trial, 18 U.S.C. 3103a(b). The bills amends the law in similar if distinct ways:
S. 1389H.R. 3199
No comparable provision. Eliminates trial delay as an adverse result
justifying delayed notice (sec. 121),
proposed 18 U.S.C. 3103a(b)(1).
Requires notice not later than seven daysRequires notice not later than 180 days after
after execution or on a later date certain ifexecution (sec. 114(1)), proposed 18 U.S.C.
the facts justify a longer delay (sec, 4(b)),3103a(b)(3).
proposed 18 U.S.C. 3103a(b)(3).
Permits extensions of up 90 days or longerPermits extensions of up to 90 days (sec.
if the facts justify (sec. 4(b)), proposed 18114(2)), proposed 18 U.S.C. 3103a(b)(3).
U.S.C. 3103a(c).
S. 1389H.R. 3199
Requires the Administrative Office of theRequires the Administrative Office of the
United States Courts to annually report toUnited States Courts to annually report to
Congress the number of delay noticethe Judiciary Committees the number of
warrants requested, granted, and deniedwarrants and of delayed notices authorized
during the year (sec. 4(c)), proposed 18indicating the triggering adverse result (sec.
U.S.C. 3103a(c).121), proposed 3103a(c).
Authorizes the Administrative Office inNo comparable provision.
consultation with the Attorney General to
promulgate regulations implementing the
reporting requirements (sec. 4(c)), proposed
The bills postpone with considerable modification the section 215 FISA tangible
item orders providing government access to business records in certain national security
cases (the so-called library section):
S. 1389H.R. 3199
Postpones expiration until December 31,Postpones expiration until December 31,
Predicates issuance upon a court finding ofPredicates issuance upon a court finding
relevancy and that the things sought pertainthat the application requirements are met
to, or are relevant to the activities of, a(i.e., specification that the records concern
foreign power or agent of foreign power, oran authorized investigation, not based solelyst
pertain to an individual in contact with oron 1 Amendment protected activities of a
known to a suspected agent of a foreignU.S. person, to obtain foreign intelligence
power. (Sec. 7(a), (c)).information (not concerning a U.S. person)
or to protect against international terrorism
or espionage. (Sec. 107(a), (b)).
Requires that the order describe the items No comparable provision.
sought with particularity and provide a
reasonable time for them to be assembled
and made available. (Sec. 7(b)).
Requires the Director or Deputy Director ofRequires the Director of the FBI approve
the FBI approve applications for ordersapplications for orders seeking access to
seeking access to library, book store,library or book store records. (Sec. 107(e)).
firearm sales, or medical records. (Sec.
Recognizes exceptions to confidentialityRecognizes exceptions to confidentiality
restrictions for disclosure to the recipient’srestrictions for disclosure to the recipient’s
attorney, those necessary to comply with theattorney, and those necessary to comply
order, and others approved by the FBI, allwith the order, all of whom are bound by
of whom are bound by the confidentialitythe confidentiality requirements of which
requirements of which they must be advisedthey must be advised upon disclosure. (Sec.
upon disclosure. (Sec. 7(d)).107(c)).
S. 1389H.R. 3199
Allows recipients to challenge FISA Allows recipients to challenge FISA
tangible item orders and confidentialitytangible item orders in the FISA court; the
orders in the FISA court with thePresiding Judge may dismiss frivolous
opportunity of appeal to the FISA reviewpetitions and assign others to one of the 3
court and of certiorari to the SupremeFISA court judges assigned to a review
Court. (Sec. 7(e)).panel; with the opportunity of appeal to the
FISA review court and of certiorari to the
Supreme Court. (Sec.10 7(d)).
Unlawful orders or confidentialityUnlawful orders may be modified or set
requirements and orders requiringaside. (Sec. 107(d)).
production that could be quashed in the
case of a grand jury subpoena
(unreasonable, oppressive, or privileged)
may be modified or set aside. (Sec.
Review petitions are filed under seal; Review petitions are filed under seal;
government material may be reviewed exgovernment material may be reviewed ex
parte and in camera. (Sec. 7(e)).parte and in camera. (Sec.107(d)).
The Chief Justice in consultation with the The Chief Justice in consultation with the
Attorney General and Director of NationalAttorney General and Director of National
Intelligence is to establish securityIntelligence is to establish security
measures; and the FISA court is to establishmeasures. (Sec. 107(d)).
review procedures. (Sec. 7(e)).
Requires inclusion of statistical informationNo comparable provision.
concerning orders for the production of
library, book store, firearm sales, medical or
tax records with the statistical report to
Congress. (Sec. 7(f)).
Adds the Judiciary Committees to the list ofNo comparable provision.
recipients of full reports on the use of FISA
tangible item orders. (Sec. 7 (f)).
National security letter statutes authorize federal officials, generally the Federal
Bureau of Investigation (FBI) to request communications providers, financial institutions
and credit bureaus to provide certain customer transaction information under strict
confidentiality requirements in national security cases, 12 U.S.C. 3414, 15 U.S.C. 1681u,
1681v, 18 U.S.C. 2709, 50 U.S.C. 436. The lack of judicial involvement and the practices
surrounding use of the communications NSL have been found to violate the Fourth and
First Amendments to the Constitution, Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y.
S. 1389H.R. 3199
Amends 18 U.S.C. 2709 to permit judicialAuthorizes judicial enforcement of the
enforcement in U.S. district court. (Sec.NSLs in a new judicial review section (18
8(c)).U.S.C.3511); disobedience of the court’s
order is punishable as contempt of court.
(Sec. 116).
S. 1389H.R. 3199
Amends the confidentiality provisions of 18Amends the confidentiality provisions of
U.S.C. 2709 to permit disclosure to thosethe NSL statutes to permit disclosure to
necessary for compliance and to an attorneythose necessary for compliance and to an
for legal advice. (Sec. 8(d) (2)).attorney for legal advice. (Sec. 117).
No comparable provision. Amends the NSL statutes to provide for
nondisclosure orders only when the
investigative agency determines that the
disclosure may endanger any individual or
national security, or interfere with
diplomatic relations or a criminal or
intelligence investigation. (Sec. 117).
No comparable provision.Violations of a confidentiality requirement
are punishable by imprisonment for not
more than one year (imprisonment for not
more than five years if committed with an
intent to obstruct). (Sec. 118).
Amends 18 U.S.C. 2709 to permit a motionCreates a new section (18 U.S.C. 3511)
to quash or modify in district court. (Sec.establishing district court review procedures
Permits the court to modify or quash NSLsPermits the court to modify NSLs if
under 18 U.S.C. 2709 if compliance wouldcompliance would be unreasonable or
be unreasonable, oppressive, or violate anyoppressive. (Sec. 116).
constitutional or other legal right or
privilege. (Sec. 8).
The court may modify NSL confidentialityRecipients may petition the court to have
restrictions under 18 U.S.C. 2709 if there isNSL confidentiality restrictions modified
no reason to believe disclosure willonce a year and the petition may be granted
endanger national security, or interfere withupon a finding that there is no reason to
an investigation or diplomatic relations, orbelieve disclosure will endanger national
endanger a life. (Sec. 8).security, or interfere with an investigation
or diplomatic relations, or endanger a life.
Good faith government certification of such
a danger is conclusive. (Sec. 116).
No comparable provision.Requires that any report to a Congressional
committee on NSLs shall also be provided
to the Judiciary Committees. (Sec. 119).
While S. 1389 calls for a number of additional rules and reports in order to enhance
accountability in the use of FISA authority which have no counterpart in the House bill,
there are far more unique provisions in H.R. 3199. They include provisions dealing with
capital offenses and adjusted capital punishment procedures, sections that in large
measure replicate the seaport crimes portions of S. 378 (as reported), a substantial
expansion in federal forfeiture authority in terrorism and money laundering cases, and
expansion of federal wiretapping authority to embrace investigations into twenty crimes
for which the authority did not previously exist.