With the deadline fast approaching for renewal of USA PATRIOT Act powers, lawmakers appeared unable to reach an agreement. Senate Democrats are proposing to give Congress another 90 days to negotiate before controversial provisions expire this year, while Senate Majority Leader Bill Frist (R-TN) is calling for renewal before Congress leaves this year. The House and Senate each passed versions to reauthorize the USA PATRIOT Act, which expires on December 31. The two versions had vastly different provisions that needed to be reconciled in a conference between the two chambers. The Senate version, which passed unanimously, had modest, but important, changes to key provisions affecting civil liberties. The House version did not. The House-Senate conference on the bill appeared to be quite contentious. The public fight appeared to be over the length of reauthorization for three sections of the bill dealing with government access to business records (including libraries and booksellers in Section 215), roving wiretaps (Section 206), and surveillance of "lone wolf" suspects who have no obvious link to terrorists organizations (added to the Foreign Intelligence Surveillance Act). Amidst last-minute arm-twisting, Sen. Arlen Specter (R-PA) appeared to be the key swing as he pushed his Republican colleagues in the House to accept the Senate's language that extends these provisions for four years instead of the seven- or 10-year extensions sought by House negotiators. The White House relented and House and Senate Republicans put forth a conference agreement, without Democratic support. The Republican conference agreement contains four-year extensions and modest changes elsewhere, including slight rule modifications that fell far short of the Senate version, under which federal agents can secretly search homes and businesses. A bipartisan coalition of Senators, as well as a coalition of pubic interest groups, have been critical of the conference agreement, maintaining that the modified rules are not nearly enough to protect civil liberties, and do not meet the bipartisan standard set by the Senate when it passed its version. The six Senators--Larry Craig (R-ID), Dick Durbin (D-IL), Russ Feingold (D-WI), Lisa Murkowski (R-AK), Ken Salazar (D-CO) and John Sununu (R-NH)-- released a statement explaining, "We are gravely disappointed that the conference committee made so few changes to the Patriot Act reauthorization package..." and threatening a filibuster of the conference report if it is not fixed. The public interest coalition argues that the conference agreement leaves the law open to abuse and "fishing expeditions" into the private records of innocent Americans, instead of focusing on suspected terrorists. Specifically, the coalition has raised concerns over three issues:

• The Library Records Provision (Sec. 215) -- This provision allows the government to obtain a secret court order for any records or items from libraries and booksellers. The conference agreement does not require the government to show a connection between the records being sought and a suspected terrorist. Moreover, the target of the investigation may not be suspected of having any link to terrorism, and the recipient of the court order has limited rights to challenge it. The Senate version of the bill required the government to show a connection when seeking such court order in order to stop "fishing expeditions" that unduly invade privacy.
• Sneak and Peak Provision (Section 213) -- This provision allows delayed notice of searches of homes and businesses. The conference agreement allows a 30-day delay in providing notice of a search. Prior to the Patriot Act, a maximum of seven days could transpire before notification and the Senate version would have reinstated that requirement. Such sneak and peak searches are not limited to persons or businesses with links to terrorism.
• National Security Letters (Section 505) -- This provision expanded the power of the FBI to issue National Security Letters (NSLs) to obtain records from businesses about their customers. This includes credit reports, records from Internet Service Providers, and financial records. Recently the Washington Post revealed that NSLs were used roughly 30,000 times, many times more than had been previously disclosed. The conference agreement does not require court approval or a connection between the requested records and a suspected terrorist, and limits rights to challenge the action.

Other civil liberties issues have been raised concerning the conference agreement. On Dec. 12, the ACLU expressed concern that the agreement would give the Secret Service expanded authority to charge protesters accused of disrupting major events. Also on Dec. 12, several Democratic Senators and members of the House proposed that Congress temporarily extend the current Patriot Act powers for three months to work out a good compromise on these contentious issues. Such an extension may give lawmakers the opportunity to better understand how current powers are used. However, it appears that congressional leadership is uninterested in this approach and, along with the White House, want the bill reauthorized now. The House is expected to pass the conference agreement next week. It is unclear whether the Senate leadership has the 60 votes necessary to cut off the filibuster by the bipartisan group of six Senators. For more on the USA PATRIOT Act, see www.aclu.org.