Government Collection of Private Information: Background and Issues Related to the USA PATRIOT Act Reauthorization

Anna C. Henning, Coordinator
Legislative Attorney

Elizabeth B. Bazan
Legislative Attorney

Charles Doyle
Senior Specialist in American Public Law

Edward C. Liu
Legislative Attorney

Congress enacted the USA PATRIOT Act soon after the 9/11 terrorist attacks. The most controversial sections of the act facilitate the federal government's collection of more information, from a greater number of sources, than had previously been authorized in criminal or foreign intelligence investigations. The Foreign Intelligence Surveillance Act (FISA), the Electronic Communications Privacy Act (ECPA), and the national security letter (NSL) statutes were all bolstered. With the changes came greater access to records showing an individual's spending and communication patterns as well as increased authority to intercept e-mail and telephone conversations and to search homes and businesses. In some cases, evidentiary standards required to obtain court approval for the collection of information were lowered. Other approaches included expanding the scope of information subject to search, adding flexibility to the methods by which information could be collected, and broadening the purposes for which information may be sought. 

Some perceived the changes as necessary to unearth terrorist cells and update investigative authorities to respond to the new technologies and characteristics of ever-shifting threats. Others argued that authorities granted by the USA PATRIOT Act and subsequent measures could unnecessarily undermine constitutional rights over time. In response to such concerns, sunset provisions were established for many of the changes. 

Subsequent measures made most of the USA PATRIOT Act changes permanent. However, three authorities affecting the collection of foreign intelligence information are set to expire on February 28, 2011: the lone wolf, roving wiretap, and business record sections of FISA. The 111th Congress replaced an earlier expiration date with the 2011 date. Before that change was made, the impending expiration prompted legislative proposals which revisit changes made by the USA PATRIOT Act and related measures. Two such bills—the USA PATRIOT Act Sunset Extension Act of 2009 (S. 1692) and the USA PATRIOT Amendments Act of 2009 (H.R. 3845)—were reported from their respective judiciary committees. 

In addition to the expiring provisions, these and other bills introduced during the 111th Congress (e.g., S. 1686, S. 1725, S. 1726, S. 2336, H.R. 1800, H.R. 3846, H.R. 3969, and H.R. 4005) address a range of issues, including national security letters, minimization requirements, nondisclosure requirements (gag orders), interception of international communications, and retroactive repeal of communication provider immunity for Terrorist Surveillance Program (TSP) assistance. This report surveys the legal environment in which the legislative proposals arise. .


Date of Report: March 2, 2010
Number of Pages: 30
Order Number: R40980
Price: $29.95

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