Authority to Spy on Americans Unclear as Patriot Act Expires

1. The Records provision. This allows federal investigators with a court order to compel anyone to hand over "any tangible thing" showing "relevance" to a terrorist investigation from all business, hospitals, and some libraries. According to the U.S. Attorney General's office, there have been 220 such orders issued, but no major case to date has transpired because of information procured from them.

Both the Senate and the House bills renew the provision, but remove that presumption of "relevance" so that the burden of proof falls on the government to report facts and circumstances justifying what the items sought have to do with an investigation. A higher threshold of proof is specified for library circulation records and patron lists in both bills, but the House goes further to add booksellers to that group.

2. The Roving Wiretaps provision. The provision authorizes authorities to track a target by wiretapping any multiple lines of communication without specifically naming a target or what kind of communication they're using to the FISA (Foreign Intelligence Surveillance Act) courts issuing the warrant. The FISA court grants about 22 such warrants annually, according to a government document.

The House bill renews the roving wiretaps, but puts more restrictions on the government proving an unnamed target as a specific individual to prevent dragnet operations. The Senate leaves the provision as is.

3. The Lone Wolf provision. This provision allows authorities to make use of secret surveillance orders to spy on non-Americans if there is proof that they are engaged in a terrorist activities, but not necessarily involved with a terrorist organization or foreign power. The Lone Wolf provision has never been used.

The House Judiciary Committee voted to allow the Lone Wolf provision to expire, stating that normal procedures for criminal investigations could be used instead; the Senate voted to renew it.

Perhaps more important than the expiring provisions is one that is not set to expire at all.

Acquiescing to a coalition of 20 civil libertarian groups, House Democrats used the reauthorization process as the opportunity to place tough restrictions and an expiration date on a provision concerning administration subpoenas, or national security letters (NSLs), fast becoming the central focus of this debate.

The secret letters are used by the FBI to compel third parties -- financial services such as Internet providers, travel and telephone companies -- to hand over client records like bank records, for instance, presuming they're relevant to a terrorism investigation, but without having to get a court order.

"To fail to narrow this authority would be reckless," said Michael German, formerly with the FBI and now policy counsel for ACLU's Washington legislative office.

There were more than 192,000 known NSLs that were issued by the FBI between 2003-2006, according to a government report. The FBI's 10 percent review of field office NSLs found at least 640 potential intelligence violations from 2003 through 2006, according to the Justice Department Inspector General Glenn Fine.

His office issued reports citing underreporting and "serious misuse" of the secret letters issued by the FBI to obtain personal information sometimes not covered by the law. After two reports since 2007, the number of secret letters dropped, but rose again in 2008 to 24,744 in that year alone, according to the Department of Justice.

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