Lawmakers in the House and Senate began negotiations last week on renewing 16 provisions of the USA PATRIOT Act, set to expire this year. Several important differences exist between the House and Senate bills that affect the government's transparency in its exercise of powers to clandestinely search, seize, and collect information. How these differences are resolved will have broad implications for civil liberties and government surveillance powers. A recent Washington Post story reported that the Justice Department used a USA PATRIOT Act power to secretly issue 30,000 mandatory requests for information during the last year alone. The report has raised calls for the need to revise this USA PATRIOT Act power, an issue not previously a part of the Congressional agenda. This is just one of several information access and open government issues at stake in the committee negotiations. Access to Business Records - Section 215 A controversial provision of the USA PATRIOT Act, Section 215, allows the government to access library records and other business records with little or no oversight. The section allows the FBI to order the disclosure of business records that are certified to be "for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities." The FBI merely has to make this claim before the Foreign Intelligence Surveillance Act (FISA) Court, which meets in secret and whose opinions are not publicly disclosed, and the FISA Court must grant the order. The USA PATRIOT Act leaves the FISA Court with no discretion to reject the order. The order is automatically accompanied with a gag provision that prohibits the recipient from disclosing to any third parties that the order was received. One of the most significant differences between the bills passed by the House and Senate on the USA PATRIOT Act powers concerns Section 215. The Senate bill would require the government to link the requested records to a suspected terrorist subject, whereas the House bill merely requires the FBI to demonstrate that the records are "relevant" to a terrorist investigation. By requiring the connection to a suspected terrorist, the Senate revision would prevent the FBI from engaging in "fishing expeditions," capricious exercises of the power. Moreover, the Senate bill schedules the provision to sunset, or expire, in four years, while the House bill establishes a 10-year sunset. Sneak and Peek - Section 213 Section 213 of the USA PATRIOT Act gives the government the power to conduct searches and seizures without notifying the target. The section allows law enforcement agencies to delay notifying the subject of such a "sneak and peek" search for a "reasonable period" if the agency believes that such notification will have "an adverse effect." While such searches are not new, the lack of a definition for "reasonable period" in Section 213 creates a troubling loophole for government disclosure. Moreover, under this provision, the government can seize, as well as search, property without giving notice. The Senate bill would modify this section to require the government to give notification within seven days, with the ability to receive extensions. The House bill would allow the government to wait up to 6 months before giving notification. Reporting Requirements The requirement to report on the use of USA PATRIOT Act powers promotes the openness and transparency of government necessary to ensure that the Justice Department, as well as other departments and agencies, does not abuse these powers. Currently the USA PATRIOT Act contains few such reporting requirements for any law enforcement agencies. The Senate bill includes important reporting requirements relating to the use of, among other things, "sneak and peek" searches and Section 215 business records orders. The House bill contains a provision requiring the Attorney General to issue a report on the use of data mining technology by each federal agency and department. Data mining is increasingly utilized in anti-terrorism efforts. Such reporting requirements could help curtail another Total Information Awareness program that would collect the personal information (e.g., buying habits, medical records, traveling habits) of innocent Americans. The House bill would also require reporting on the use of National Security Letters (NSL), which could in and of itself reduce the Justice Department's reliance on this secret tool. National Security Letters - Section 505 One section of the USA PATRIOT Act that has recently raised controversy but that is not subject to a sunset is the NSL power of Section 505. Thanks to a recent Washington Post article, this provision has become a focus of attention among members of the House and Senate and could potentially be revised in committee. Without court approval, the FBI can issue an NSL that requires an Internet Service Provider (ISP) or telephone company to disclose all information (e.g., web history, email addresses, telephone use) relating to a person. Similar to Section 215, the NSL is issued with a gag order that prohibits the recipient from discussing it with a third party. Previously restricted to suspected terrorists or spies, the USA PATRIOT Act revised the standard to cover any information that is "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities." In other words, NSLs can be used to collect information about almost anyone. The Washington Post story found that in the last year alone the government has issued 30,000 NSLs. The government stores the collected information in databases that are shared across government agencies. Additionally, President Bush's Executive Order 13388, expanded access to these records to state and local governments and "appropriate private sector entities." The NSL provision has been declared unconstitutional in two cases. The U.S. District Court in Manhattan ruled in John Doe v. Ashcroft that an NSL to an ISP was unconstitutional, because it violated the right to free speech and the protection against unreasonable searches and seizures. More recently, the U.S. District Court in Bridgeport, CT ruled in John Doe v. Gonzales that an NSL to a library consortium violated the right to free speech. Both decisions were stayed pending a Nov. 2 appeal before the U.S. Court of Appeals for the Second Circuit. Currently, the language of the USA PATRIOT Act does not specify that the recipients can challenge NSLs in a court of law, and the sweeping language of the gag provision prohibits recipients from discussing NSLs with a lawyer. Both the House and Senate bills would clarify that the NSL recipients have the right to challenge such orders in court and to consult with an attorney. Last week, Sen. Pat Roberts (R-KS), chairman of the Senate Intelligence Committee, expressed his hopes that the subpoena powers of the FBI would be strengthened, giving the government even more powers than the NSL provision currently allows. Having failed to get this provision included in the House or Senate bills, however, Roberts is now trying to influence the committee. But many legislators seem hesitant to support the provision. A bi-partisan group of five senators -- Dick Durbin (D-IL), Russ Feingold (D-WI), Ken Salazar (D-CO), Larry Craig (R-ID), and John Sununu (R-NH) -- sent a letter to Attorney General Alberto Gonzalez and Inspector General Glenn A. Fine, requesting that the Justice Department disclose more information regarding the use of NSLs, and a host of senators recently spoke out against the powers currently granted to the FBI. To alleviate concerns relating to Section 505, some have suggested that a sunset be placed on the NSL provision and that NSLs be restricted to terrorist suspects (similar to the restriction the Senate bill places on Section 215). Conclusion The negotiations between the House and Senate on the bills could be completed as early as this week. The new powers given to the government in the USA PATRIOT Act could prove potent weapons in the war on terror; but if misused these powers pose a significant threat to open government and civil liberties. It is vitally important that the committee preserve the Senate bill, which establishes better safeguards against abuse and stronger mechanisms for accountability. Such safeguards ensure the USA PATRIOT Act will help protect against terrorist attacks, while also protecting the public against government abuses of power.