Tester marks Constitution Day with bill to reform Patriot Act

JUSTICE Act will strengthen security while protecting privacy and civil rights

(WASHINGTON, D.C.) – Senator Jon Tester today marked Constitution Day by announcing new legislation to overhaul the controversial Patriot Act.

Tester is a cosponsor of the Judicious Use of Surveillance Tools in Counterterrorism Efforts Act—known as the JUSTICE Act.  The legislation would reform the Patriot Act and other controversial measures to protect constitutional rights while allowing law enforcement agents to fight terrorism and collect intelligence.  Tester teamed up with Sen. Russ Feingold, D-Wisc., in introducing the bill.

Congress passed the Patriot Act shortly after the attacks of September 11, 2001, giving authorities sweeping new powers to look into Americans’ private records and conversations.  Tester has long opposed the measure because it invades privacy and violates the constitutional rights of law-abiding Americans.

“Like a lot of Montanans, I have serious concerns about the Patriot Act and how it was implemented,” said Tester, a member of the Senate Homeland Security Committee.  “What this bill will do is restore common sense so we can fight terrorism without ignoring the Constitution and without invading the privacy of law-abiding Americans.”

The JUSTICE Act, in part:

• Adds safeguards to ensure that “national security” searches are only used to obtain records of people believed to have some connection to terrorism or espionage.
• Allows roving wiretaps under the Foreign Intelligence Surveillance Act (FISA), but requires agents to identify a specific target first to avoid anonymous wiretaps.
• Repeals the retroactive immunity provision for telecommunications companies in Foreign Intelligence Surveillance Act (FISA), so companies that handed over customer phone records to the federal government will be held accountable.
• The Patriot Act’s overbroad definition of domestic terrorism includes acts of civil disobedience by political organizations.  The JUSTICE Act limits the definition of terrorism to offenses that are defined as domestic terrorism, so that acts of civil disobedience are not considered terrorist acts.

The JUSTICE Act now goes to the Senate Judiciary Committee.

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The Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act would reform the USA PATRIOT Act, the FISA Amendments Act and other surveillance authorities to protect the constitutional rights of Americans while ensuring the government has the powers it needs to fight terrorism and collect intelligence.

Title I – Reasonable Safeguards to Protect the Privacy of Americans’ Records

Sections 101-106 – National Security Letters
The bill rewrites the National Security Letter (NSL) statutes to ensure the FBI can obtain basic information without a court order, but also adds reasonable safeguards to ensure NSLs are only used to obtain records of people who have some connection to terrorism or espionage, and to provide meaningful, constitutionally sound judicial review of NSLs and associated gag orders. 

Section 107 – Section 215 Orders
The bill would reauthorize the use of Section 215 business records orders under FISA, but with additional checks and balances to ensure these orders are only used to obtain records of people who have some connection to terrorism or espionage, and to provide meaningful, constitutionally sound judicial review of Section 215 orders and associated gag orders. 

Title II – Reasonable Safeguards to Protect the Privacy of Americans’ Homes

Section 201 – “Sneak & Peek” Searches
The bill would retain the Patriot Act’s authorization of “sneak and peek” criminal searches but eliminate the overbroad catch-all provision that allows these secret searches in virtually any criminal case.  It would shorten the presumptive time limits for notification, and create a statutory exclusionary rule.

Title III – Reasonable Safeguards to Protect the Privacy of Americans’ Communications

Section 301 – FISA Roving Wiretaps
The bill would reauthorize roving FISA wiretaps, but eliminate the possibility of “John Doe” roving wiretaps that identify neither the person nor the phone to be wiretapped.  It would require agents to ascertain the presence of the target of a roving wiretap before beginning surveillance. 

Section 302 – Pen Registers and Trap and Trace Devices
The bill would retain the Patriot Act’s expansion of the FISA and criminal pen/trap authorities to cover electronic communications, but would allow pen/traps to be used only to obtain information about people who have some connection to terrorism or espionage.  It would impose additional procedural safeguards to serve as a check on these authorities. 

Section 303 – Telecommunications Immunity
The bill would repeal the retroactive immunity provision in the FISA Amendments Act. 

Section 304 – Bulk Collection
The bill retains the new warrantless authorities in the FISA Amendments Act but would prevent the government from using that law to conduct “bulk collection” of the contents of communications, including all communications between the United States and the rest of the world. 

Section 305 – Reverse Targeting
The bill would ensure that the overseas warrantless collection authorities of the FISA Amendments Act are not used as a pretext to target Americans in the U.S.   

Section 306 – Use of Unlawfully Obtained Information
The bill would limit the government’s use of information about Americans obtained under FISA Amendments Act procedures that the FISA Court later determines to be unlawful, while giving the court flexibility to allow such information to be used in appropriate cases. 

Section 307 – Protections for International Communications of Americans
The bill would amend the FISA Amendments Act to create safeguards for communications not related to terrorism that the government knows have one end in the United States.   

Section 308 – Computer Trespass
The bill would guard against abuse of a warrantless surveillance authority in the Patriot Act that allows computer owners who are subject to denial of service attacks or other episodes of hacking to give the government permission to monitor trespassers on their systems. 

Title IV – Improvements to Further Congressional and Judicial Oversight

Section 401 – FISA Public Reporting
The bill would require limited additional public reporting on the use of FISA.

Section 402 – Use of FISA Evidence
The bill would apply the Classified Information Procedures Act to the use of FISA evidence in criminal cases, and allow the use of protective orders and other security measures in civil cases, to ensure that courts have discretion to allow litigants access to information where appropriate while still protecting sensitive information.

Section 403 – Nationwide Court Orders
The bill would permit a recipient of a nationwide court order to challenge it either in the district where it was issued or in the district where the recipient is located.

Title V – Improvements to Further Effective, Focused Investigations

Section 501 – Domestic Terrorism
The Patriot Act’s overbroad definition of domestic terrorism could cover acts of civil disobedience by political organizations.  The bill would limit the qualifying offenses for domestic terrorism to those that constitute a federal crime of terrorism.

Section 502 – Material Support
The bill would amend the overly broad criminal definition of material support for terrorism by specifying that a person must know or intend the support provided will be used for terrorist activity.