Order Code RS22216
August 10, 2005
CRS Report for Congress
Received through the CRS Web
USA PATRIOT Act Reauthorization in Brief
Charles Doyle
Senior Specialist
American Law Division
Summary
Both Houses have approved proposals to reauthorize USA PATRIOT Act sections
scheduled to expire at the end of the year. The House passed H.R. 3199 on July 21,
2005, 151 Cong. Rec. H6307; the Senate, S. 1389 on July 29, 2005 (although the Senate
substituted its language for that of H.R. 3199 and then passed H.R. 3199; for
convenience the Senate version of H.R. 3199 is referred to as S. 1389 here). This is a
sketch of those bills and how they differ. Their common provisions deal mostly with
expanded federal authority under the Foreign Intelligence Surveillance Act (FISA) and
the Electronic Communications Privacy Act (ECPA). The bills make permanent all but
two of the temporary USA PATRIOT Act sections. They postpone the expiration of the
two, dealing with FISA roving wiretaps and the so-call library or business records
authority. In these two, the national security letter statutes, and some of the other USA
PATRIOT Act provisions make sometimes parallel and sometimes individualistic
adjustments. H.R. 3199 contains a number of features not found in S. 1389 including
a first responder grant program, new capital offenses and adjusted capital punishment
procedures, sections that in large measure replicate the seaport crimes portions of S. 378
(as reported), a substantial expansion in federal forfeiture authority in terrorism and
money laundering cases, and expansion of federal wiretapping authority to embrace
investigations into twenty crimes for which the authority did not previously exist. A
more detailed version of this report is available as CRS Report RL33027, USA
PATRIOT Act: Background and Comparison of House- and Senate-approved
Reauthorization and Related Legislative Action.
Both House and Senate bills make the following expiring sections of the USA
PATRIOT Act permanent without amendment: Sec. 201 (ECPA wiretapping in certain
terrorism investigations), Sec. 202 (ECPA wiretapping in computer fraud and abuse
investigations), Sec. 203(d) (law enforcement sharing of foreign intelligence information
notwithstanding any other legal restriction), Sec. 204 (technical exception for foreign
intelligence pen register/trap & trace device use), Sec. 209 (seizure of stored voice mail
by warrant rather than ECPA order), Sec. 217 (law enforcement access to computer
trespassers’ communications within the intruded system), Sec. 218 (FISA wiretap or
search orders with an accompanying law enforcement purpose (removal of the wall of
separation between criminal catchers and spy catchers)), Sec. 220 (nation-wide service of
Congressional Research Service ˜ The Library of Congress

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court orders directed to communication providers), Sec. 223 (civil liability and
disciplinary action for certain ECPA or FISA violations), Sec. 225 (civil immunity for
assistance in executing a FISA order)(H.R. 3199, §102; S. 1389, §9(a)).
Both bills also make permanent section 6603 of the Intelligence Reform and
Terrorism Prevention Act, which otherwise expires on December 31, 2006, and which
temporarily clarifies and expands federal proscriptions on providing material support to
terrorists, e.g., 18 U.S.C. 2339A, 2339B (H.R. 3199, §104; S. 1389, §9(c)). They both
postpone – until December 31, 2009 in the Senate bill and until December 31, 2015 in the
House bill – the expiration of section 6001 of the Intelligence Reform and Terrorism
Prevention Act, which expires on December 31, 2005, and which makes FISA orders
available in the investigation of foreign international terrorists without knowing whether
they are agents or members of a particular group of international terrorists, (H.R. 3199,
§103; S. 1389, §9(b)).
Both bills make section 207 permanent but amend it in essentially the same manner
(H.R. 3199, §§102, 106; S. 1389, §§9(a), 3). Section 207 temporarily elongates the
permissible life-time of FISA surveillance and physical search orders (and extensions)
directed at the officers and employees of foreign powers, 50 U.S.C. 1805(e), 1824(d).
The bills make the change permanently applicable to any agent of a foreign power who
is not a “U.S. person,” and elongates the permissible lifetime of FISA pen register/trap
and trace orders and extensions when the effort is likely to produce foreign intelligence
information other than that which concerns a “U.S. person,” proposed 50 U.S.C. 1842(e).
As for individualized treatment, the bills both make permanent temporary section
203(b) of the USA PATRIOT Act which allows federal law enforcement officials to share
with certain other federal officials foreign intelligence information obtained during a court
authorized wiretap, 18 U.S.C. 2517(6) (H.R. 3199, §102; S. 1389, §9(a)), but the House
bill alone insists that the authorizing court be informed of the disclosure, H.R. 3199,
§105. The two bills each (1) make permanent section 212 which permits communications
service providers to voluntarily provide authorities with the contents of stored
communications or communication transaction information (without a warrant or
customer consent) in emergency cases, 18 U.S.C. 2702(b)(8), (c)(4), (H.R. 3199, §102;
S. 1389, §9(a)), and (2) require annual reports on the extent of voluntary good faith
disclosures of stored communications under 18 U.S.C. 2702(b)(8) (H.R. 3199, §108); S.
1389, §4(a)). But the Senate bill alone removes the requirement that the danger be
immediate from the emergency communications record disclosure provisions of 18 U.S.C.
2702(c)(4) (S. 1389, §4(b)). They both make permanent section 214 which temporarily
expressly expands FISA pen register/trap and trace authority to electronic
communications and enlarges the range of permissible targets, (H.R. 3199, §102; S. 1389,
§9(a)), but S. 1389 (§6) alone modifies its provisions by authorizing FISA pen
register/trap and trace orders that direct service providers to supply intelligence
investigators with related customer information and by requiring the Attorney General to
provide the Judiciary Committees with full reports on the use of the FISA pen
register/trap and trace authority, proposed 50 U.S.C. 1842(d)(2)(C), 1846(a).
The bills take different approaches in their amendments relating to four other USA
PATRIOT Act sections: Sec. 206 (assistance in conducting roving FISA wiretaps), Sec.
213 (delayed notification of sneak and peek), Sec. 215 (FISA tangible items access
orders), and Sec. 505 (national security letters (NSLs)).

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Section 206 of the USA PATRIOT Act, a temporary section whose expiration date
both bills postpone, allows FISA courts to include within a FISA surveillance order a
general direction for third party assistance, rather than a direction addressed to a particular
communications provider or the like, when the target’s actions may preclude specific
identification, 50 U.S.C. 1805(c)(2)(B). The two bills differ thus:

S. 1389
H.R. 3199
Postpones sunset until December 31, 2009 (sec.
Postpones sunset until December 31, 2015 (sec.
9).
102(b)).
Requires that the target of a FISA surveillance
Requires that the FISA court’s finding that the
order be described with particularity when the
target’s action may thwart identification of
target’s identity and the nature and location of
assistants be based on specific facts in the
the target place or facilities are unknown (sec.
application (sec. 109(a)).
2(a)).
Within 10 days of when the target’s action
Within 15 days of when the target’s action
requires relocation of the surveillance’s focus,
requires relocation of the surveillance’s focus,
the issuing FISA court must be advised and
the issuing FISA court must be advised and
provided with additional justification and
provided with additional justification and
minimization information (sec. 2(b)).
information on the number of surveillances
conducted or planned (sec. 2(b)).
Directs that required FISA reports to
No comparable provision.
Congressional Intelligence Committees be
expanded to include roving wiretap information
and be provided to the Judiciary Committees as
well (sec.2(c)).
Section 213 of the USA PATRIOT Act is not a temporary section. It allows federal
courts to permit delayed notice of the execution of a search warrant for a reasonable
period time when contemporaneous notice might have adverse consequences such as the
flight of a suspect, the loss of evidence, physical injury, jeopardy to an investigation or
delay of a trial, 18 U.S.C. 3103a(b). The bills amends the law in similar if distinct ways:
S. 1389
H.R. 3199
No comparable provision.
Eliminates trial delay as an adverse result
justifying delayed notice (sec. 121), proposed 18
U.S.C. 3103a(b)(1).
Requires notice not later than seven days after
Requires notice not later than 180 days after
execution or on a later date certain if the facts
execution (sec. 114(1)), proposed 18 U.S.C.
justify a longer delay (sec, 4(b)), proposed 18
3103a(b)(3).
U.S.C. 3103a(b)(3).
Permits extensions of up 90 days or longer if the
Permits extensions of up to 90 days (sec.
facts justify (sec. 4(b)), proposed 18 U.S.C.
114(2)), proposed 18 U.S.C. 3103a(b)(3).
3103a(c).
Requires the Administrative Office of the United
Requires the Administrative Office of the United
States Courts to annually report to Congress the
States Courts to annually report to the Judiciary
number of delay notice warrants requested,
Committees the number of warrants and of
granted, and denied during the year (sec. 4(c)),
delayed notices authorized indicating the
proposed 18 U.S.C. 3103a(c).
triggering adverse result (sec. 121), proposed
3103a(c).

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S. 1389
H.R. 3199
Authorizes the Administrative Office in
No comparable provision.
consultation with the Attorney General to
promulgate regulations implementing the
reporting requirements (sec. 4(c)), proposed 18
U.S.C. 3103a(c).
The bills postpone with considerable modification the section 215 FISA tangible
item orders providing government access to business records in certain national security
cases (the so-called library section):
S. 1389
H.R. 3199
Postpones expiration until December 31, 2009.
Postpones expiration until December 31, 2015.
(Sec. 9).
(Sec. 102).
Predicates issuance upon a court finding of
Predicates issuance upon a court finding that the
relevancy and that the things sought pertain to,
application requirements are met (i.e.,
or are relevant to the activities of, a foreign
specification that the records concern an
power or agent of foreign power, or pertain to an
authorized investigation, not based solely on 1st
individual in contact with or known to a
Amendment protected activities of a U.S. person,
suspected agent of a foreign power. (Sec. 7(a),
to obtain foreign intelligence information (not
(c)).
concerning a U.S. person) or to protect against
international terrorism or espionage. (Sec.
107(a), (b)).
Requires that the order describe the items sought
No comparable provision.
with particularity and provide a reasonable time
for them to be assembled and made available.
(Sec. 7(b)).
Requires the Director or Deputy Director of the
Requires the Director of the FBI approve
FBI approve applications for orders seeking
applications for orders seeking access to library
access to library, book store, firearm sales, or
or book store records. (Sec. 107(e)).
medical records. (Sec. 7(c)).
Recognizes exceptions to confidentiality
Recognizes exceptions to confidentiality
restrictions for disclosure to the recipient’s
restrictions for disclosure to the recipient’s
attorney, those necessary to comply with the
attorney, and those necessary to comply with the
order, and others approved by the FBI, all of
order, all of whom are bound by the
whom are bound by the confidentiality
confidentiality requirements of which they must
requirements of which they must be advised
be advised upon disclosure. (Sec. 107(c)).
upon disclosure. (Sec. 7(d)).
Allows recipients to challenge FISA tangible
Allows recipients to challenge FISA tangible
item orders and confidentiality orders in the
item orders and confidentiality orders in the
FISA court with the opportunity of appeal to the
FISA court; the Presiding Judge may dismiss
FISA review court and of certiorari to the
frivolous petitions and assign others to one of
Supreme Court. (Sec. 7(e)).
the 3 FISA court judges assigned to a review
panel; with the opportunity of appeal to the
FISA review court and of certiorari to the
Supreme Court. (Sec.10 7(d)).

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S. 1389
H.R. 3199
Unlawful orders or confidentiality requirements
Unlawful orders may be modified or set aside.
and orders requiring production that could be
(Sec. 107(d)).
quashed in the case of a grand jury subpoena
(unreasonable, oppressive, or privileged) may
be modified or set aside. (Sec. 7(b),(e)).
Review petitions are filed under seal;
Review petitions are filed under seal;
government material may be reviewed ex parte
government material may be reviewed ex parte
and in camera. (Sec. 7(e)).
and in camera. (Sec.107(d)).
The Chief Justice in consultation with the
The Chief Justice in consultation with the
Attorney General and Director of National
Attorney General and Director of National
Intelligence is to establish security measures;
Intelligence is to establish security measures.
and the FISA court is to establish review
(Sec. 107(d)).
procedures. (Sec. 7(e)).
Requires inclusion of statistical information
No comparable provision.
concerning orders for the production of library,
book store, firearm sales, medical or tax records
with the statistical report to Congress. (Sec.
7(f)).
Adds the Judiciary Committees to the list of
No comparable provision.
recipients of full reports on the use of FISA
tangible item orders. (Sec. 7 (f)).
National security letter statutes authorize federal officials, generally the Federal
Bureau of Investigation (FBI) to request communications providers, financial institutions
and credit bureaus to provide certain customer transaction information under strict
confidentiality requirements in national security cases, 12 U.S.C. 3414, 15 U.S.C. 1681u,
1681v, 18 U.S.C. 2709, 50 U.S.C. 436. The lack of judicial involvement and the practices
surrounding use of the communications NSL have been found to violate the Fourth and
First Amendments to the Constitution, Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y.
2004). The bills address those concerns as follows:
S. 1389
H.R. 3199
Amends 18 U.S.C. 2709 to permit judicial
Authorizes judicial enforcement of the NSLs in a
enforcement in U.S. district court. (Sec. 8(c)).
new judicial review section (18 U.S.C.3511);
disobedience of the court’s order is punishable
as contempt of court. (Sec. 116).
Amends the confidentiality provisions of 18
Amends the confidentiality provisions of the
U.S.C. 2709 to permit disclosure to those
NSL statutes to permit disclosure to those
necessary for compliance and to an attorney for
necessary for compliance and to an attorney for
legal advice. (Sec. 8(d) (2)).
legal advice. (Sec. 117).
No comparable provision.
Amends the NSL statutes to provide for
nondisclosure orders only when the investigative
agency determines that the disclosure may
endanger any individual or national security, or
interfere with diplomatic relations or a criminal
or intelligence investigation. (Sec. 117).

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S. 1389
H.R. 3199
No comparable provision.
Violations of a confidentiality requirement are
punishable by imprisonment for not more than
one year (imprisonment for not more than five
years if committed with an intent to obstruct).
(Sec. 118).
Amends 18 U.S.C. 2709 to permit a motion to
Creates a new section (18 U.S.C. 3511)
quash or modify in district court. (Sec. 8).
establishing district court review procedures for
NSLs. (Sec. 116).
Permits the court to modify or quash NSLs
Permits the court to modify NSLs if compliance
under 18 U.S.C. 2709 if compliance would be
would be unreasonable or oppressive. (Sec. 116).
unreasonable, oppressive, or violate any
constitutional or other legal right or privilege.
(Sec. 8).
The court may modify NSL confidentiality
Recipients may petition the court to have NSL
restrictions under 18 U.S.C. 2709 if there is no
confidentiality restrictions modified once a year
reason to believe disclosure will endanger
and the petition may be granted upon a finding
national security, or interfere with an
that there is no reason to believe disclosure will
investigation or diplomatic relations, or endanger
endanger national security, or interfere with an
a life. (Sec. 8).
investigation or diplomatic relations, or endanger
a life. Good faith government certification of
such a danger is conclusive. (Sec. 116).
No comparable provision.
Requires that any report to a Congressional
committee on NSLs shall also be provided to the
Judiciary Committees. (Sec. 119).
While S. 3189 calls for a number of additional rules and reports in order to enhance
accountability in the use of FISA authority which have no counterpart in the House bill,
there are far more unique provisions in H.R. 3199. They include provisions dealing with
capital offenses and adjusted capital punishment procedures, sections that in large
measure replicate the seaport crimes portions of S. 378 (as reported), a substantial
expansion in federal forfeiture authority in terrorism and money laundering cases, and
expansion of federal wiretapping authority to embrace investigations into twenty crimes
for which the authority did not previously exist.

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