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Congress Extends USA PATRIOT Act by 1 Month
Posted On December 26, 2005
On the last day of the 2005 legislative session, the U.S. Congress passed Senate bill 2167, which extends the existing USA PATRIOT Act by 1 month. The Act's provisions, which had been set to expire on Dec. 31, 2005, will now expire on Feb. 3, 2006. The bill was required after the Senate refused to accept a proposal which would have made most of the Act permanent. By a bipartisan vote of 52 to 48, the Senate was unable to end a filibuster of the proposal (which requires 60 votes). Unable to modify the proposal to satisfy opponents, or convince seven Senators to switch their votes (the eighth vote was Senate Majority Leader Bill Frist, who supported the proposal, but voted no for technical reasons involving Senate rules), the PATRIOT Act would have expired on Dec. 31, 2005.

Throughout the summer and fall, several versions of PATRIOT Act extension and reform bills were circulating through the House and Senate. After competing versions were enacted in each chamber, a joint House-Senate Conference Committee was established to work out a compromise. Its proposal was released on Dec. 8; it was approved by the House on Dec. 14.

The compromise bill would have made many of the provisions of the PATRIOT Act permanent. However, the most controversial provisions, including Section 215, which permits access to business records, such as library patron files, was only extended by 4 years. The bill also included a number of changes to Section 215 that purported to provide increased safeguards against misuse, although critics continued to argue that the safeguards were insufficient.

Another controversial area addressed by the compromise was the issuance on National Security Letters (NSLs). These letters can be issued by the FBI without court authorization, must be kept secret, and are used to obtain records from "electronic communication service providers." A recent NSL was challenged by a Connecticut recipient—identified as a member of the American Library Association—on constitutional grounds. The PATRIOT Act compromise endorsed the use of NSLs and proposed some additional safeguards. However, the compromise maintained the secrecy provisions and included the possibility of criminal penalties for violation, as well as proposing to make the PATRIOT Act's NSL provisions permanent.

Despite strong approval in the House, the PATRIOT Act compromise bill came before the Senate at a time of increasing concern and skepticism about the PATRIOT Act and the Bush administration's impact on civil liberties in responding to terrorism. On the same day the compromise was to be voted on in the Senate, The New York Times reported that the Bush administration had authorized eavesdropping on Americans as well as foreign nationals without court approval. Although the Bush administration claimed that the wiretapping was legal, several Senators mentioned the report as evidence of the need for stronger civil liberties protections than were in the compromise bill.

In the weeks leading up to the vote, a number of events also raised concerns about the PATRIOT Act. In early December, a federal jury acquitted University of South Florida professor Sami Al-Arian of advocating and financing terrorism. In a case that was considered the "first real test" of the PATRIOT Act, jurors concluded that Al-Arian's speeches and recorded conversations were expressions of free speech and did not constitute advocating violence or financing terrorism. Later in December, the town of Coupeville, Wash., became the 400th town, county, or state to pass a resolution opposing the PATRIOT Act.

Also in December, The New York Times reported that FBI records showed "numerous violations" of surveillance and investigative procedures. In addition, there was a request by the FBI to bypass the Justice Department's intelligence office, which reviews requests for business records under the PATRIOT Act. The FBI went so far as to complain: " While radical militant librarians kick us around, true terrorists benefit from OIPR's [Department of Justice Office of Intelligence Policy and Review] failure to let us use the tools given to us ."

Even the passage of the 1-month extension was controversial. Initially, the Senate passed a 6-month extension, and the White House indicated that President Bush would sign it. However, House leaders balked and only agreed to the 1-month extension, which the Senate ultimately agreed to. President Bush has indicated that he will sign the 1-month extension.

The passage of the extension maintains the status quo represented by the existing USA PATRIOT Act for a few weeks. However, the objections and concerns raised by critics of the PATRIOT Act are also maintained as well.

At this juncture, a number of possibilities exist. If seven Senators can be convinced to switch their votes, the existing compromise would be approved by the Senate and sent to the president. More likely, the joint committee will reconvene (or a new joint committee will convene) to hammer out a new compromise that will require a new vote in both the House and the Senate.

Congress will have barely 1 month in which to address the continuing concerns about the PATRIOT Act and develop a new compromise. Congress will also be occupied with the confirmation hearings for Supreme Court nominee Samuel Alito and other controversial proposals that were left dangling at the end of 2005, including oil drilling in the Arctic and federal budget cuts. Finally, the Senate has pledged to hold hearings on the wiretapping of U.S. citizens, which will likely cast a cloud over the PATRIOT Act debate.

The 1-month extension allows both supporters and critics a bit of time to regroup. However, with such a short time to the next deadline, the political storm surrounding the Act is unlikely to die down. The continuing war in Iraq, the proposed wiretapping hearings, litigation over NSLs, and continued criticism of the Act will drive the push for reform. But as the 109th Congress shifts into its second session, the 2006 elections will begin casting a large shadow over anything Congress does. The elections also enhance the importance of contacting your representatives and letting them know your feelings about the USA PATRIOT Act.

George H. Pike is the director of the Pritzker Legal Research Center and a senior lecturer at the Northwestern University School of Law. He teaches legal research, intellectual property, and privacy courses at the School of Law in both the J.D. and Northwestern’s innovative Master of Science in Law program. Prof. Pike is a frequent lecturer on issues of First Amendment, copyright, and Internet law for library and information professionals. He is also a regular columnist and writer for Information Today, publishing a monthly column on legal issues confronting information producers and consumers. Previously, Prof. Pike was director of the Law Library at the University of Pittsburgh School of Law, and held professional positions at the Lewis and Clark Law School and at the University of Idaho School of Law, and was a practicing attorney in Idaho Falls, Idaho. Prof. Pike received his B.A. degree from the College of Idaho, his law degree from the University of Idaho, and his Masters in Library Science from the University of Washington. He is a member of the American and Idaho State Bar Associations, the American Association of Law Libraries, and the American Intellectual Property Lawyers Association.

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