Fine-tuning the Patriot Act

An important message was sent Tuesday when the House failed to extend three provisions of the Patriot Act. It’s not that the extension won’t ultimately be approved; it was brought up Tuesday under special rules requiring a two-thirds majority, but will most likely be approved next week by a simple majority. Much of the opposition to the extension, notably from freshman Republicans associated with the “tea party” movement, signaled a recognition that the law infringes on personal privacy.

Not all of the provisions to be extended are objectionable. In fact, this page has already endorsed two of them: the use of roving wiretaps to keep track of suspected terrorists who change telephones, and the “lone wolf” provision allowing the surveillance of a suspected terrorist even if he or she is not connected with any specific terrorist group. But the third, which allows investigators to obtain business records with a court order, gives the government too much leeway.

Current law requires judges to presume that the material being sought is relevant to a terrorist organization. In 2009, the Senate Judiciary Committee adopted a different standard, requiring investigators to convince a court that the material sought is reasonably likely to be relevant to an intelligence investigation. That still gives the government too much discretion, but it would have been an improvement over current law. We would prefer a standard that is closer to probable cause.

The business records section should be changed when the House and Senate versions of the extension are reconciled. But if that doesn’t happen, Congress should act separately to prevent FBI agents and other investigators from engaging in fishing expeditions.

While Congress is at it, lawmakers should reform a part of the Patriot Act that did not require reauthorization. That section allows investigators to seek documents from businesses by presenting national security letters — subpoenas that do not require judicial approval. At present, an investigator must merely certify that the information sought is relevant to an authorized investigation. The law should be amended to require that the use of a national security letter must be related to a suspected foreign agent or terrorist or a confederate.

The Patriot Act has become a symbol of overreaching by government in the war on terror. In fact, the law doesn’t even include practices that some critics associate with it, such as the Bush administration’s wiretapping without a court order or the mistreatment of prisoners at Guantanamo. Nevertheless, the law permits unjustifiable invasions of privacy. It needs to be changed.