After two short-term extensions of the USA PATRIOT Act, Congress and the White House appear to have reached a deal on the controversial legislation. Unfortunately, the deal fails to make real progress toward protecting civil liberties.

The White House has been pushing for full reauthorization of the Patriot Act for several years, even calling for making permenant several law enforcement powers that were created by scheduled to sunset under the act. Sens. John Sununu (R-NH) and Russell Feingold (D-WI), led a group of Senators in demanding specific changes to the USA PATRIOT Act to better protect civil liberties. But Sununu recently struck a deal with the White House that fails to make changes to most of the identified problems.

The deal would:

• permit judicial review of Section 215 orders (which allow inspection of records or other items held by libraries and booksellers) after one year of its receipt.

   

• allow National Security Letter (NSL) recipients not to inform the FBI of their attorney's name.

   

• clarify that libraries are not subject to NSLs.

Feingold argues that such changes are insufficient and has committed to doing everything he can to stop it.

The following provisions are previously identified problems that Sununu's deal fails to address:

• 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 agreement does not require the government to show a connection between the records being sought and a suspected terrorist, nor does the target of the investigation need be suspected of having any link to terrorism. The bi-partisan group of Senators previously argued that the government should show a connection when seeking court orders to prevent "fishing expeditions" that unduly invade privacy.

   

• Sneak and Peak Provision (Section 213) -- This provision allows delayed notice of searches of homes and businesses. The agreement would allow a 30-day delay in providing notice of a search. Also troubling is that such "sneak and peak" searches are not limited to persons or businesses with links to terrorism. The deal fails to reinstate the maximum of seven days before notification that existed before the USA PATRIOT Act and which the bi-partisan group argued for.

   

• National Security Letters (Section 505) -- This provision expands the power of the FBI to issue NSLs to obtain records from businesses about their customers. This includes credit reports, records from Internet Service Providers, and financial records. The agreement does not require court approval or a connection between the requested records and a suspected terrorist.

A vote on amendments to the USA PATRIOT Act and a final vote on the bill are expected in the coming weeks. Failing a dramatic turnaround, the Senate is expected to pass the agreement with little modification, leaving another missed opportunity for Congress to ensure better protection of civil liberties under the USA PATRIOT Act.