The Obameter

Revise the Patriot Act to increase oversight on government surveillance


"As president, Barack Obama would revisit the PATRIOT Act to ensure that there is real and robust oversight of tools like National Security Letters, sneak-and-peek searches, and the use of the material witness provision."

Updates

More oversight, but limits not ironclad

The key development on President Barack Obama's promise was the passage of the USA Freedom Act on June 2, 2015. After signing two reauthorizations of the Patriot Act that left most its central features intact, Obama signed major revisions into law that affected the bulk collection of telephone metadata and the operations of the Foreign Intelligence Surveillance Court.

One of the most telling revelations by former National Security Agency contractor Edward Snowden was that the government had been stockpiling raw data on the timing, location and numbers of ordinary phone calls. By the government's reading, this was allowed under section 215 of the Patriot Act.

The USA Freedom Act ended that practice as of Nov. 29, 2015. If the National Security Agency wants that kind of information, it would make its case before the Foreign Intelligence Surveillance Court, listing the specific numbers it wanted to include in its search and why. With that approval, the NSA would submit its query to the private telecommunications companies who would sift through their data. In an emergency, the NSA can seek approval from three top-ranking officials at the Justice Department -- the attorney general, the deputy attorney general or the assistant attorney general for national security.

So, before the change, the NSA simply collected all the metadata it could handle. After the change, only the Foreign Intelligence Surveillance Court or, in an emergency, three top Justice Department officials can authorize the collection of targeted metadata.

The new law contains other features. The Foreign Intelligence Surveillance Court can bring in an outsider to serve as a public advocate when new sorts of intelligence issues crop up, plus there are some additional opportunities to appeal decisions by the court. On the transparency front, the court must issue a public report when it decides on new technical or legal matters. And if  companies or organizations are subpoenaed to produce information, they can, under certain circumstances, speak publicly about it.

All of this qualifies as providing more oversight on government surveillance, but privacy experts and advocates caution against assuming that everything is fine and dandy.

Neema Guliani at the American Civil Liberties Union characterizes the oversight as "better than the dismal status quo," but hardly ironclad.

"There's a question whether the government is giving the judges all the information they need to make a decision," Guliani told us. "And it seems unclear what the government sees as its notification responsibilities.  If you don't provide notice and information, it become difficult to determine if the judges are performing their oversight function."

Shayana Kadidal, senior managing attorney at the Center for Constitutional Rights, wrote that metadata might not be as protected as people think.

"There are many other ways in which the government could be sweeping in the same records," Kadidal wrote. "In part, that is because metadata isn't protected by the warrant requirement the same way the content of your phone calls is."

Kadidal said the government might be able to get what it wants through a more easily obtained subpoena.

To be sure, the advocates say the new law is better than the Patriot Act, but they see loopholes.

There's one other criticism. Elizabeth Goitein at the Brennan Center for Justice in New York gives Obama little credit for carrying these changes forward.

"He signed two straight reauthorizations of the Patriot Act into law, and only got behind reform legislation, the USA Freedom Act, after it became inevitable post-Snowden," Goitein said.

She also noted that Obama signed the reauthorization of another law, the Foreign Intelligence Surveillance Act, which she said leaves open the potential for warrantless wiretaps.

Nonetheless, Obama promised to change the Patriot Act to increase oversight of government surveillance. He didn't say how robust that oversight would be, and even the critics agree that the country has more today than before. We rate this Promise Kept.

Sources:

U.S. Congress, USA Freedom Act, June 2, 2015

Huffington Post, Surveillance After the USA Freedom Act: How Much Has Changed?, Dec. 17, 2015

Interview, Neema Guliani, legislative counsel, American Civil Liberties Union, Sept. 15, 2016
 
Elizabeth Goiten, co-director, Liberty and National Security Program, Brennan Center for Justice, Sept. 15, 2016

No official oversight, but a few voluntary measures

On May 26, 2011, President Barack Obama signed a bill that reauthorized key elements of the Patriot Act. The bill called for a four-year renewal of some of the most controversial provisions of the surveillance legislation. While the bulk of the Patriot Act is steadfast law, there are certain measures that Congress must periodically reauthorize or else they expire. Among them is roving wiretaps, i.e., the ability of law enforcement officials to track targets if they change phones without law enforcement first consulting a judge. 

The Patriot Act, passed shortly after the September 11, 2001 attacks, granted law enforcement increased surveillance powers to prevent additional terrorist incidents. Since its conception, the Patriot Act has been mired in controversy. Civil rights advocates argue that the law is a violation of Americans' privacy rights. Key members of Congress, including both liberal Democrats and Tea Party Republicans, have attempted to amend the Patriot Act in order to protect Americans from potential privacy rights violations.

The expiring provisions of the act came up for re-authorization in late 2009. Despite months of congressional debate and a delayed vote, President Obama ended up signing a re-authorization that included no changes in early 2010.

This year-long extension came up for renewal again in early 2011. In this year's re-authorization battle, Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., and Sen. Rand Paul, R-Ky., sponsored an amendment that would have increased congressional oversight of these renewed provisions. Yet the Leahy-Paul Amendment was never brought to a full vote. Ultimately the Patriot Act was reauthorized without any sort of additional oversight included in the final language. By reauthorizing the Patriot Act, President Obama guaranteed (barring any judicial action) that the law will live on in its current form until June 1, 2015. 

"The extension of the Patriot Act provisions does not include a single improvement or reform, and includes not even a word that recognises the importance of protecting the civil liberties and constitutional privacy rights of Americans,” said Sen. Leahy.

Michelle Richardson, legislative council at the American Civil Liberties Union, said the Patriot Act has not changed since President Obama took office. 

The conservative Heritage Foundation, which expressed support of the Patriot Act in its current form, agreed that there have been few changes since its implementation. "President Obama probably did revisit the PATRIOT Act when he became president and realized that it was extremely helpful to investigators and already contained the needed oversight to ensure that is was used in way that was consistent with the law and U.S. Constitution,” said Jena McNeill, Senior Policy Analyst of Homeland Security at the Heritage Foundation in an e-mail interview.

But the ACLU's Richardson noted that while there have been no additional legislative oversight measures passed during Obama's presidency, there have been some put in place in the executive branch. Most notably, the Justice Department decided to implement several measures that were originally included in the USA PATRIOT Act Sunset Extension Act of 2009 - a failed oversight bill proposed by Sen. Leahy. 

In response to a letter from Leahy in December 2010, the Justice Department said it had:

• Implemented a requirement that, when library or bookseller records are sought via a Section 215 order for business records, a statement of specific and articulable facts showing relevance to an authorized investigation must be produced;
• Adopted a policy requiring the FBI to retain a statement of facts showing that the information sought through a National Security Letter (NSL) is relevant to an authorized investigation, to facilitate better auditing and accountability;
• Adopted procedures to provide notification to recipients of NSLs of their opportunity to contest any nondisclosure requirement attached to the NSL;
• Agreed to ensure that NSL recipients who challenge nondisclosure orders are notified by the FBI when compliance with such nondisclosure orders are no longer required;
• Adopted procedures for the collection, use and storage of information derived from National Security Letters, which were approved by Attorney General Holder on October 1, 2010.

Leahy also said that DOJ had agreed to work with Congress to determine ways to make additional information publicly available regarding the use of FISA authorities.

"I still believe that these important oversight and accountability provisions should be enacted in law, but I appreciate that by implementing key measures in the bill, the Department of Justice has embraced the need for oversight and transparency," Leahy said in response to the Justice Department's action.

Where does that leave us? President Obama has spoken in the past in favor of more oversight and Attorney General Eric Holder supported the USA PATRIOT Act Sunset Extension Act of 2009. Nonetheless, the president signed a reauthorization that included no additional oversight. However, the DOJ has implemented key components of Sen. Leahy's bill. Whether this decision qualifies as "robust oversight” is in the eye of the beholder. Without legislative action, this oversight can go away with a change in administration. Nevertheless, because of these executive actions, we rate this promise as Compromise.

Sources:

Text of Leahy-Paul Amendment -- 112th Congress

Senator Patrick Leahy, press release, May 23, 2011

Senator Patrick Leahy, press release, May 26, 2011.

Senator Rand Paul, press release, May 23, 2011.

CNN, "Obama approves extension of expiring Patriot Act provisions,” May 27, 2011.

USA Today, "Key Patriot Act elements up for vote,” May 26, 2011.

Wired, "House Delays Patriot Act Spy Vote,” December 19, 2009.

The Christian Science Monitor, "Obama signs Patriot Act extension without reforms,” March 1, 2010.

POLITICO, "Patriot Act clears House, Senate,” May 26, 2011.

The Guardian, "Patriot Act surveillance provisions extended in nick of time,” May 27, 2011.

Sen. Patrick Leahy, press release, December, 9, 2010.

E-mail interview with Michelle Richardson, legislative council at the ACLU.

E-mail interview with Jena McNeill, Senior Policy Analyst of Homeland Security at The Heritage Foundation.

Patriot Act extended for a year, but without changes

President Barack Obama's promise to increase oversight of wiretapping practices has been put on hold after Congress passed a one-year extension of the Patriot Act that made no changes to the law.

In the fall of 2009, civil liberties groups were hopeful that two bills proposing substantial changes to the act would pass. One, by Senate Judiciary Committee Chairman Patrick Leahy, would have reauthorized three expiring provisions of the Patriot Act with new reporting requirements and oversight authority. It would also have phased out the government's use of national security letters, documents used by the government to demand businesses or organizations turn over information about individuals. Meanwhile, the House Judiciary Committee approved a bill to reauthorize a provision letting the government maintain wiretaps even if a suspect changes phone numbers or providers. The bill would have allowed another provision to expire, canceling the government's power to track suspects that are not affiliated with any group or foreign country. The House bill also phased out the national letters program and modified the government's authority to conduct "sneak and peek" searches carried out in secret and requiring no prior notice.

But both those bills haven't gone further than their respective committees. Instead, Congress opted to pass a one-year extension of the expiring provisions, and civil liberties groups say the action precludes further work on the issue this year. As a result, we're moving this promise to Stalled.

Sources:

Congressional Quarterly, New Extension Likely for Key Patriot Act Provisions, by Keith Perine, Feb. 11, 2010 The American Civil Liberties Union, Breakdown of HR 3845, The USA Patriot Amendments Act of 2009, accessed March 16, 2010 Phone Interview, Michelle Richardson, legislative consultant, American Civil Liberties Union, March 15, 2010 The American Civil Liberties Union, Congress Drops the Ball on Upgrading Patriot Protections, Feb. 26, 2010

Bill pending in Congress

As a candidate for president, then-Sen. Barack Obama railed against parts of USA Patriot Act that gave the Bush administration sweeping powers to intercept phone and e-mail communications in the name of fighting terrorism with little judicial or congressional oversight, and Obama pledged to institute "robust" checks and balances if elected.

Now that he's in charge of keeping America safe, President Obama sounds a bit less strident. His attorney general, Eric Holder, has asked Congress to renew three controversial provisons of the Patriot Act that expire in 2010, disappointing liberal Democrats and civil liberties groups who say the provisions endanger civil liberties and foster inappropriate government spying. At the top of this list is the so-called "lone wolf" provision, which allows the government to track and monitor a suspected terrorist with far less evidence than typically required.

However, the Obama administration is backing a Senate bill that would increase congressional and judicial oversight over government eavesdropping, while preserving most of the eavesdropping options granted by the Patriot Act. That bill, S. 1962, passed the Senate Judiciary Committee on Oct. 8, 2009, and Holder endorsed it in a letter dated Nov. 9. It keeps the lone wolf provision intact, as Holder requested, but with new requirements for showing such monitoring is necessary.

By contrast, the administration apparently has remained silent on a competing House bill, H.R. 3845, that would allow some controversial Patriot Act powers to sunset in 2010. That bill, which passed the House Judiciary Committee on Nov. 5, has the backing of liberal Democrats and many civil liberties groups, including the American Civil Liberties Union.

Although the Obama administration supports a more limited overhaul than many of the president liberal's allies would like, the bill the White House supports would fulfill Obama's pledge of revisiting the Patriot Act and boosting oversight. However, by passing the Senate Judiciary Committee, that bill has reached only the first of many stops on the trip to Obama's desk.

Therefore, PolitiFact.com rates this promise is In the Works.

Sources:

Letter from U.S. Attorney General Eric Holder to the Senate Judiciary Committee and Senate Intelligence Committee expressing support for S. 1692.

The Hill, Obama Stares Down Patriot Act Criticism , Nov. 12, 2009

American Civil Liberties Union breakdown of H.R. 3845.

ACLU comparison chart of two Senate bills, S. 1692 and S. 1686, to amend and reauthorize the Patriot Act. The Obama administration generally supports S. 1692.

Congressional Research Service summary of H.R. 3845, courtesy of Govtrack.us.

Congressional Research Service summary of S. 1692, courtesty of Govtrack.us.

Transcript of the Nov. 4, 2009 House Judiciary Committee markup of the H.R. 3845.

Floor statement of Senate Judiciary Chairman Patrick Leahy, D-Vt., introducing S. 1692 on Sept. 22, 2009. Link to text from www.Thomas.gov provided courtesy of www.govtrack.us .