July 28, 2005
Thursday

The House recently made 14 of the Patriot Act's expiring provisions permanent and extended two others. It was essentially an exercise in fine-tuning that for the most part managed to retain the act's teeth while protecting civil liberties. But there are still problems, two of which we've been harping on for years.

The first is the act's permanent "sneak-and-peek" provision, which originally allowed law enforcement to delay for a "reasonable period" telling the subject of a court-ordered warrant that his or her property had been searched. The House was supposed to remedy this by putting a limit on how long the authorities could delay notification. But instead of stipulating a specific requirement, lawmakers opted for 180 days, with 90-day extensions, meaning prosecutors could dawdle almost indefinitely before notifying a target of a search.

The House also failed to fix the act's "library provision," which allows agents to subpoena library and other records solely on the claim they are relevant to national security or a terrorism investigation. Lawmakers extended the provision for 10 years and claimed to provide greater safeguards by passing an amendment requiring that all future searches be personally approved by the director of the FBI.

The important issue for us with the library provision, however, has been that while the Patriot Act requires a court order for a subpoena, judges have to accept the "relevance" claim at face value. The House tried to curb this overreach with an amendment that does indeed allow such warrants to be challenged in court. But the amendment also set conditions that make it almost impossible for a defendant to prevail.

Fortunately, the Senate will soon craft its own bill to renew the Patriot Act, so the struggle to remedy these flaws is not yet over.

 

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