By MICHAEL ARNONE
The Chronicle of Higher Education
June 13, 2003, Friday

Tensions are flaring again in Congress between lawmakers who want to expand the scope of the USA Patriot Act and those who want to scale it back.

Members of Congress opposed to the law's reach have introduced at least three bills that, if enacted, would ease the burden on colleges and other organizations of complying with the Patriot Act. But those proposals do not deal with the provisions that college officials find most troubling, like those requiring the tracking of foreign students and scholars at American institutions.

The House of Representatives is also expected to take up a proposal, overwhelmingly approved in the Senate, that would give the government more latitude in arresting suspected terrorists. The Senate bill marked the first time that a chamber of Congress has approved a measure based on draft legislation that the U.S. Department of Justice has written to widen its authority under the Patriot Act.

Known informally as Patriot Act II, the draft as a whole includes many measures that concern privacy advocates. Several provisions could have severe effects on colleges, including a proposal to make virtually all of a college's records available to law-enforcement officers without a warrant.

One thing is certain, at least for now. A sunset provision added to the original Patriot Act, under which some of its provisions are set to expire in 2005, will remain in place now that lawmakers fought off an attempt last month to repeal it.

Turning Back the Clock

Several changes in the Patriot Act are up for debate. Rep. Bernard Sanders, an Independent from Vermont, wants to exempt bookstores and libraries from the law's reporting requirements. His bill, HR 1157, would allow libraries to keep their patrons' records secret and require law-enforcement agents to get subpoenas to gain access to other information. Computer hard drives and other physical objects could not be seized as "tangible items" associated with investigations. Under the bill, libraries would be treated as they were before the Patriot Act was passed.

The bill would also require the Justice Department to make public a list of all requests for physical items, like computers, sought in terrorism investigations. The department would also have to account for what was seized and how effective the objects were in the investigations.

Mr. Sanders's bill, which is being reviewed by the House Judiciary and Intelligence Committees, has more than 100 cosponsors.

Meanwhile, two Patriot Act measures are under consideration by the Senate Judiciary Committee. The first, S 1158, a companion bill to Mr. Sanders's legislation, was introduced last month by Sen. Barbara Boxer, a California Democrat.

The second, the Domestic Surveillance Oversight Act, would require the Justice Department to respond more quickly and specifically to Congressional requests for information about antiterrorism investigations. Sen. Patrick Leahy, a Democrat from Vermont, is sponsoring the bill, S 436.

It would require the FBI director to provide the Senate Judiciary and Intelligence Committees with separate lists of requests for telephone records and business records from libraries, including those at colleges. It would also require the attorney general to inform the Senate Judiciary Committee about Justice Department requests for financial records and credit reports from all investigations.

Even though the bills were introduced by Democratic or Independent lawmakers, strong support from influential Republicans bodes well for the bills in both chambers, says Prudence S. Adler, associate executive director of the Association of Research Libraries. Rep. Don Young, of Alaska, is a cosponsor of Mr. Sanders's bill; Sens. Charles E. Grassley of Iowa and Arlen Specter of Pennsylvania are backing Mr. Leahy's bill.

Hunting 'Lone Wolves'

However, some other lawmakers are still interested in expanding the powers that law-enforcement agencies have to fight terrorism. Sens. John Kyl, an Arizona Republican, and Charles E. Schumer, a New York Democrat, recently introduced a bill that would allow the government to arrest a non-U.S. citizen whom it suspects of terrorism even if it cannot prove that the person is working for a foreign government or organization.

That bill, S 113, would allow the government to go after "lone wolf" terrorists who work on their own. It passed the Senate 90 to 4 last month. The House has yet to introduce a companion bill.

Senate approval of the measure worries some lawmakers and privacy advocates who still have misgivings about the original Patriot Act, which was written in six weeks after the September 11 attacks. If the "lone wolf" bill passes the House and the president signs it, says Lara Flint, staff counsel at the Center for Democracy and Technology, a group that advocates for civil liberties, "then anyone considered a criminal could be surveilled."

The "lone wolf" measure is based on the Patriot Act II draft legislation, formally titled the Domestic Security Enhancement Act of 2003, which was leaked to lawmakers and the press last February by the Center for Public Integrity, a government-watchdog group based in Washington. The Justice Department first denied and then admitted that it had written the draft. Civil-liberties groups, college officials, and some lawmakers have since banded together to criticize Patriot Act II, arguing that it would give law-enforcement agencies too much power to gather and share sensitive personal information. Judicial oversight of those activities would be reduced or even eliminated under the draft bill. And many of the surveillance activities that the Patriot Act authorizes against noncitizens would be expanded to cover U.S. citizens.

For example, one section of Patriot Act II would enable law-enforcement agencies to obtain library records, credit records, and many other kinds of information without a search warrant. Under another section, a defendant's use of encryption software while committing a computer crime would automatically add at least five years to a criminal sentence.

A third section would remove tax-exempt status from nonprofit organizations that the Justice Department designates as terrorist supporters. A fourth would allow the department to strip citizenship from Americans whom it deems to have contributed to a foreign organization that supports terrorism. Decisions in both instances could be made years after the fact, even if those penalized were unaware of the group's alleged activities.

Portions of Patriot Act II are cause for concern even if most of the legislation is still in draft form, says John C. Vaughn, executive vice president of the Association of American Universities, a group of 62 research institutions. But so far, he adds, he has not heard anything to indicate that the expanded powers given the government under the original Patriot Act have had any deleterious effect on colleges.

Indeed, some of the problems that college officials expected have not materialized, says Sheldon E. Steinbach, vice president and general counsel at the American Council on Education. Congress would be willing to change the law, he says, if specific evidence could be produced that colleges have been hurt by it.

At least one sector of higher education, though, does feel injured by the Patriot Act. International-student offices have complained bitterly about technical glitches in the student-tracking database that the act required to be ready by last January. College officials say the deadlines to use the system are unrealistic. Foreign students and scholars say the government is picking on them.

Untold Powers

Even some lawmakers say they do not know how the Justice Department has used the powers given to it under the Patriot Act. Many members of Congress feel that the department has not been forthcoming about its activities.

"I would hope that the administration would be more responsive to Congressional requests for specific rather than general information," Rep. Jerrold Nadler, a New York Democrat, said last month at a hearing of the House Judiciary Subcommittee on the Constitution. "'We can't tell you,' or, in effect, 'It's none of your business' are not adequate, acceptable answers to a Congressional committee seeking to exercise its legitimate oversight functions."

At that hearing, Viet Dinh, a former assistant attorney general who is one of the authors of the Patriot Act and Patriot Act II, said the Justice Department had released a report on its activities under the Patriot Act. Law-enforcement agents had visited about 50 libraries as part of terrorism investigations, he said. He did not specify whether any of them were college libraries.

All of the bills that have been introduced to ease the burden of the Patriot Act on libraries require that the Justice Department report its actions in detail to Congress.

Expiration Date

The debate over Patriot Act II in Congress has also sparked a fight about a key part of the original law: the sunset provision. To reassure lawmakers and privacy groups, a clause was added to end some of the expanded surveillance powers on December 31, 2005. That, supporters argued, would give members of Congress time to evaluate whether the Department of Justice had used its new powers effectively and constitutionally. If it had, then the president could sign a new law to extend them.

The clause persuaded many leery lawmakers to vote for the bill, says Orin S. Kerr, an associate professor of law at George Washington University who has testified before Congress about the legislation. "People on the fence were more willing to go along with the sunset," he says.

The clause, however, covers only a small portion of the entire Patriot Act. Most of the law's elements, including those of most concern to colleges, will remain in effect. They include the tracking of all foreign students through the Student and Exchange Visitor Information System, a database known as Sevis, and the registering of the entries and exits of all foreigners through the U.S. Visitor Immigration Status Indication Technology System, a database known as US Visit. Both systems were required by the law.

What's more, the expiration date does not apply to investigations begun before December 31, 2005. Nor does it apply to investigations of terrorist activities that take place, or are suspected to have taken place, before that date.

Dueling Amendments

Feelings about the sunset provision run deep in Congress. That led to a recent showdown in the Senate, when Sen. Russell D. Feingold, a Wisconsin Democrat, proposed several amendments to limit the scope of the "lone wolf" bill. A vocal opponent of the original Patriot Act, he had cast the sole Senate vote against it.

Sen. Orrin G. Hatch, a Utah Republican who is chairman of the Senate Judiciary Committee, has opposed the sunset clause from the beginning. To counter Mr. Feingold, he proposed his own amendment to repeal it.

In a May 14 editorial in USA Today, Senator Hatch argued the clause was unnecessary, as "Congress can always exercise oversight and change or repeal any law if warranted." Besides, he argued, "why should we simply sunset these provisions when we know full well that the terrorists will not sunset their evil intentions?"

His maneuver angered Rep. F. James Sensenbrenner, a Wisconsin Republican and chairman of the House Judiciary Committee. The sunset clause had helped convince him to support the Patriot Act, and he did not want to see it removed. "This will happen over my dead body," he told the Milwaukee Journal Sentinel.

Senator Feingold withdrew most of his proposals. Senator Hatch then withdrew his. The bill was approved by the committee and passed by the full Senate. One of its first provisions states that the new powers are subject to the sunset provision of the Patriot Act.

PROPOSALS TO CHANGE THE USA PATRIOT ACT

The USA Patriot Act greatly expanded the ability of law-enforcement agencies to gather and share information to fight terrorism, but critics say it does not allow sufficient judicial and Congressional oversight of the expanded powers and violates civil liberties. Congress is considering several bills that might alter some of the law's provisions:
* S 113,sponsored by Sens. John Kylan Arizona Republican, and Charles E. Schumer, a New York Democrat, would allow law-enforcement officers to investigate and arrest non-U.S. citizens suspected of terrorism, even if they are not agents of a foreign country or a foreign terrorist group. The bill passed the Senate in May, 90 to 4. A companion bill has not yet been introduced in the House of Representatives.
* HR 1157,sponsored by Rep. Bernard Sanders, a Vermont Independent, would exempt libraries and bookstores from providing investigators with records of patron use or physical evidence, such as computers.
* S 1158,sponsored by Sen. Barbara Boxer, a California Democrat, is the Senate version of the bill introduced by Representative Sanders.
* S 436,sponsored by Sen. Patrick Leahy, a Vermont Democrat, would require the Justice Department to report more thoroughly on its activities to Congress. It would also strengthen judicial review of requests for search warrants and would provide additional protection for libraries.