February 22, 2011

Wyden Begins Effort to Amend PATRIOT Act

Introduces legislation to require evidence for “business records”

Washington, D.C. – As a three month extension of the USA PATRIOT Act makes its way to the President’s desk, U.S. Senator Ron Wyden (D-Ore.), a senior member of the Senate Select Committee on Intelligence, said Congress must use the newly added time to hold the “debate it has spent ten years avoiding.”

“Americans deserve laws that strike the best possible balance between fighting terrorism ferociously and protecting the rights and freedoms of law-abiding American citizens,” Wyden said. “The PATRIOT Act does not strike that balance. It was written and passed six weeks after the worst terrorist attack in our nation’s history. Congress wisely included sunset dates for the Patriot Act’s most controversial provisions, so that they could be thoughtfully considered at a later time. After ten years, it is clearly time for that debate.”

One of the biggest impediments to debating the PATRIOT Act, Wyden said, is the problem of “secret law,” or instances in which government agencies rely on secret interpretations of what the law means without telling the public what those interpretations are.

It is impossible for Congress to hold an informed public debate on the Patriot Act when there is a significant gap between what most Americans believe the law says and what the government is using the law to do. In fact, I believe many members of Congress who have voted on this issue would be stunned to know how the Patriot Act is being interpreted and applied,” Wyden said. “Of course, intelligence agencies need to be able to conduct operations in secret, but even secret operations need to be conducted within the bounds of established, publicly understood law. Any time there is a gap between what the public thinks the law says and what the government secretly thinks the law says, I believe you have a serious problem.”

Wyden is also proposing a modification to the “business records” provision of the USA PATRIOT Act.  This provision currently permits government agents to obtain a broad array of information or objects, such as blood or DNA samples, simply by asserting that they are “relevant to an investigation”. Wyden’s legislation (S. 406) would replace the “relevance” standard with a “nexus to terrorism” standard. Under this standard, intelligence agencies could still use the Patriot Act to obtain records or tangible things, but would have to demonstrate that the records were in some way connected to terrorism or clandestine intelligence activities.  

“This is really a debate about the standard our government should have to meet in order to obtain personal information about individuals from banks, hospitals, libraries, retail stores, gun shops, and other institutions,” Wyden said. “Government agents should not be able to collect this sort of information on law abiding American citizens without showing that they have at least some connection to terrorism or other nefarious activities. ‘Relevance’ is simply too broad of a standard – as there are limitless interpretations of the word ‘relevant.’”

The “nexus to terrorism” standard has been previously considered by the Senate, and was included in a Patriot Act reauthorization bill sponsored by Senators Specter, Feinstein and Kyl in 2005, which passed the Senate by unanimous consent.