FBI Fears Loss of Surveillance Tools in Patriot Act By Devlin Barrett
http://www.wsj.com/articles/fbi-fears-loss-of-its-surveillance-tools-in-patriot-act-1423091243?mod=WSJ_hpp_MIDDLENexttoWhatsNewsThird
Expiring Section of Law, Targeted by Critics of NSA Phone Program, Underpins Requests for Hotel, Credit-Card Bills
WASHINGTON—U.S. officials and some lawmakers are worried that key tools used to hunt down terrorists and spies could fall victim to the fight over the government’s controversial phone-surveillance program.
The Federal Bureau of Investigation, using authority conveyed by a soon-to-expire section of the 2001 Patriot Act, is currently allowed to seek “tangible things’’ to aid in terrorism or intelligence probes, such as hotel bills, credit-card slips and other documents. Section 215 of the Patriot Act allows the FBI, with a court order, to take “books, records, papers, documents, and other items.’’
The authority is often used as a way to secretly collect evidence on suspected foreign spies operating in the U.S., according to current and former officials. Unlike a grand-jury subpoena, a person or company receiving a Section 215 order to provide documents is barred from revealing to anyone that they received such a request, these people said.
But Section 215, which is set to expire in June, also provides the legal basis for the National Security Agency’s controversial collection of phone records. That program has come under intense scrutiny from lawmakers, civil-liberties groups and others following 2013 revelations by former NSA contractor Edward Snowden that the U.S. built a vast database of millions of Americans’ phone records. The database includes the time, duration and number of each call, and investigators can use it to try to find terror suspects’ associates.
It is unclear whether Congress, where some lawmakers have long criticized the Patriot Act, will have the votes to pass an extension before Section 215 expires. It has been extended before, but this is the first time that Section 215 has come up for renewal since Mr. Snowden’s revelations.
Senior lawmakers are aware that if public opposition sinks the phone-surveillance program, the other intelligence work could become an accidental casualty of that decision, aides said.
Sen. Charles Grassley (R., Iowa), the chairman of the Senate Judiciary Committee, said in a statement, “There’s no question that Section 215 is a valuable tool that helps law-enforcement officials obtain necessary individual business records, such as hotel records, in connection with national-security investigations.’’
NSA’s critics in Congress want to overhaul the existing surveillance system and end the phone-database program.
“There is a huge difference between targeting suspected spies and terrorists, and sweeping up phone records from millions of law-abiding Americans,’’ said Sen. Ron Wyden (D., Ore.). “This is exactly why surveillance reform is so urgently needed—to preserve the authorities that law-enforcement agencies actually need, while ending dragnet surveillance that violates Americans’ privacy without making our country any safer.”
Long before the Snowden revelations, Section 215 of the Patriot Act was controversial. Critics contended it was so broadly written it was ripe for abuse, and authorized almost any kind of intelligence-gathering, up to and including the books people read at libraries.
Critics contend many of those fears have now become reality as the government collects phone records and other information, often from law-abiding citizens. Among those resisting government-surveillance efforts are businesses, which have grown more vocal in advocating greater oversight, and have worked to secure their systems against government encroachment. There are also several continuing lawsuits in federal courts seeking to end the phone surveillance.
The possibility of losing its spy and terror hunting tools is of great concern to FBI officials, who view the NSA phone program as providing far less value than the other intelligence-gathering work the section allows, according to current and former officials.
For example, the FBI can use the law now to search hotel records if they get a tip that a suspected foreign spy stayed at a hotel on a specific date, the current and former officials said. If an FBI agent spots a suspected spy using a credit card at a coffee shop, they can use a Section 215 order to get a record of that transaction, trace the credit card used for the purchase, and then search all the purchases made by that credit card, according to a person familiar with the work.
The current and former officials said the FBI doesn’t use the law to conduct other bulk intelligence-gathering similar to the NSA’s phone program, but uses it more specifically to chase down evidence that they would rather not collect through other investigative means, such as a subpoena from a grand jury or a national-security letter issued by the FBI.
FBI officials are concerned that it would be much more difficult to get that kind of information without the current authority, these people said. The FBI could fall back to using an older surveillance law that allows for the collection of a more limited range of records, and use grand-jury subpoenas more often, but officials view both of those options as significantly more risky and less effective, because professional spies or well-trained terrorists are more likely to get wind of investigators on their trail.
Two other sections of the Patriot Act are also due to expire this year—a provision to allow roving wiretaps on a number of devices at once, even if authorities are unsure of the identity of the person using those devices; and a provision that allows surveillance on “lone wolf’’ terror suspects with no known links to terrorist organizations. Those provisions are not as controversial as Section 215.
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