Senate and House committee leaders have introduced competing bills to extend expiring Patriot Act surveillance powers. On Jan. 26, 2011, Senate Judiciary Committee Chairman Patrick Leahy introduced a bill that would extend the surveillance powers until December 2013 and include oversight measures to reign in abuses. The bill offered by House Intelligence Committee Chairman Mike Rogers (R-MI) in the House contains no additional oversight provisions and would expire in February 2012. The three provisions are set to expire on Feb. 28, 2011.

Both Leahy’s USA PATRIOT Act Sunset Extension Act of 2011 and Rogers’ HR 67  would extend the three expiring provisions that:

  • permit law enforcement to conduct surveillance without identifying the person or location to be wiretapped,

  • allow surveillance of foreign persons who are not affiliated with a terrorist group,

  • andgrants the government access to any “tangible” items during their investigations. (For more information about the three provisions, click here.)

However, there are three key differences. First, Leahy’s bill would increase judicial oversight of government surveillance powers, including a requirement for authorities to identify the facts that justify a court order to access private records and raising the standards for permissible wiretaps. In the House, Roger’s bill (HR 67) seeks no further safeguards for civil liberties and privacy.

The second difference is the timing on when these provisions would expire. Leahy’s bill would expire at the end of December 2013, after the 2012 election cycle, while the Rogers bill would extend the three expiring provisions until Feb. 29, 2012. In a statement released on Jan. 26, Leahy said that one year extension was selected “deliberately to try to force a debate over national security in an election year.” The Chairman of the House Judiciary Committee, Lamar Smith (R- TX), who supports Roger’s bill, said the “short-term extension is a step toward the long-term reauthorization…It gives Congress time for an open and meaningful debate” about the provisions.

The third difference is that Leahy’s bill would impose a Dec. 31, 2013 sunset on the use of controversial National Security Letters (NSL). These letters, which allow federal law enforcement to demand personal records from Internet providers, financial institutions, and other sources generally considered to keep personal data private, are not subject to judicial review. They were meant to target investigation of foreigners, but the FBI has used them to collect information about U.S. citizens. A 2008 Department of Justice report confirmed that the FBI regularly abused their ability to obtain personal records of Americans without a warrant. A January 2010 report from the DOJ Inspector General  found continuing problems.

In December 2009, a nearly identical bill to Leahy’s was passed by the Senate Judiciary Committee, with bipartisan support. However, it was not voted on by the full Senate. Instead, the Senate passed a straight extension without the oversight measures that is set to expire on Feb. 28. In March 2010, Leahy wrote to Attorney General Eric Holder asking him to address his concerns about abuses of Patriot Act powers and sought the implementation of privacy and civil liberties provisions without legislation. The Attorney General agreed to a limited set of protections in December. However, Leahy’s announcement of his bill noted that “The reforms of this Attorney General could be undone by a future Attorney General at the stroke of a pen. We must ensure that the progress in accountability and transparency that we achieved last year is not list simply because it was never written into the statute.”

Reacting to Leahy’s bill, Michelle Richardson, legislative counsel at the American Civil Liberties Union said, “While this bill makes important changes to the Patriot Act to increase oversight of its powers, it unfortunately allows many dangerous provisions to continue.”