WASHINGTON (CN) – Lawmakers scrutinized portions of the U.S. Patriot Act up for reauthorization during a Wednesday hearing before the Senate Judiciary Committee. Most expressed support for the Act, but Democrats sought greater oversight, citing Inspector General Glenn Fine’s testimony that his office had found “serious misuse” of the FBI’s authority under the Act.
“I’m not aware of any major compliance problems,” Assistant Attorney General David Kris said, referring to the provisions under review. His view largely mirrored that of Sen. Jeff Sessions, R-Alabama, who said he didn’t think there had been any abuses, adding that the provisions often allow the government to do things it already does in criminal investigations.
Sessions also noted that the Act has allowed the United States to go eight years without another terrorist attack.
Addressing the Senate Judiciary Committee, Democratic lawmakers emphasized that they were not questioning the value of the provisions. “We all want to be safe. That’s not the issue,” Chairman Patrick Leahy, D-Vermont, said. “The issue is we each want our privacy.”
One of the provisions set to expire at the end of the year allows for “roving surveillance,” which authorizes the government to demand information from a third party, such as a phone company, on a target that’s evading surveillance. For example, if the government has evidence that a suspect frequently switches between cell phones, it can get court permission to tap into each new phone line without having to go back to the judge each time the suspect switches lines.
Also up for reauthorization is the “business records” provision, which expanded the type of business records that could be obtained during an investigation.
Lawmakers also considered whether to extend the so-called “lone wolf” provision introduced in 2004. It lowered the traditional standards for seizing information on agents “of a foreign power.”
“The lone wolf provision raises some serious issues,” said Sharon Bradford Franklin of the Constitution Project. She said the “foreign agent” classification isn’t subject to enough scrutiny. This becomes a problem when a U.S. citizen is taken to be a foreign agent, potentially tearing down the Fourth Amendment rights standards of Americans, she said.
The government has never used the lone wolf provision, inspiring Franklin to question “the rational for undercutting our traditional Fourth Amendment standards” when it has so far not been necessary for the nation’s security.
Leahy expressed concern about the relaxed search-and-seizure requirements for an investigation. He gave examples of what could happen, saying it is now much easier for investigators to get their hands on the medical records of U.S. citizens.
But Sessions downplayed the importance of third-party record privacy, saying there is a “diminished expectation of privacy” in this case, because it’s understood that phone company employees and hospital staff can already access the documents.
Session noted that the Drug Enforcement Administration can get telephone records without the authorization of a judge, a point he used to illustrate his view that the Patriot Act simply gives terrorist investigators the same tools as criminal investigators.
Franklin acknowledged the “parallels in criminal investigations,” but said Congress has not enforced these Patriot Act provisions with the same kind of safeguards.
When the discussion turned to the search and seizure of personal property, Sen. Al Franken, D-Minnesota, and Sessions had a short back-and-forth over the meaning of the Fourth Amendment.
Franken pulled a copy of the Constitution from his jacket pocket to read the amendment aloud: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”
“That’s pretty explicit language,” he remarked.
But Sessions glanced down at what appeared to be his own pocket Constitution. He also read the amendment, stressing that it only banned “unreasonable” searches and seizures.
The provision for National Security Letters, which is not yet up for reauthorization, still managed to find its way into this debate.
Issued by the FBI, these letters require electronic service providers, such as Internet hosts and telephone companies, to hand over sensitive customer records. The Patriot Act bars recipients from discussing the requests.
Inspector General Fine said the FBI has misused its authority in issuing some of the letters, but attributed the abuse to “sloppiness” rather than ill intentions. The findings were the result of an audit about two years ago.
Democratic lawmakers cited this abuse as an example of what can happen if the provisions do not include enough oversight.
“If they can be misused and have been misused, then they will be misused in the future,” Franken said.
Franklin of the centrist Constitution Project said she expects the provisions to be passed “in some form.” The real question, she said, is what kind of safeguards will be in place.