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USA PATRIOT ACT SUNSET

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Introduction

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 introduced a plethora of legislative changes which significantly increased the surveillance and investigative powers of law enforcement agencies in the United States. Legislative proposals were introduced less than a week after the terrorist attacks of September 11, 2001. President Bush signed the final bill, the USA PATRIOT Act, into law on October 26, 2001. Though the Act made significant amendments to over 15 important statutes, it was introduced with great haste and passed with little debate, and without a House, Senate, or conference report.

Though it significantly expanded the government's investigative authority, the USA PATRIOT Act did not provide for the system of checks and balances that traditionally safeguard civil liberties in the face of such legislation. The Act does, however, contain a sunset provision that terminates on December 31, 2005, several of the sections that enhance law enforcement search and electronic surveillance authority. Because the law gives government a great deal more surveillance capability, a sunset is crucial to determine how well the tools work, how effective they have been, and how responsibly the government has applied the laws.

The provisions of the USA PATRIOT Act subject to sunset generally modified two existing laws. Title III governs law enforcement interception of and access to communications in ordinary criminal investigations. The Foreign Intelligence Surveillance Act (FISA) regulates the FBI's collection of "foreign intelligence" information for intelligence purposes. Under the Fourth Amendment, a Title III warrant to intercept a communication must be based on probable cause to believe that a crime has been or is being committed. This is not the general rule under FISA: surveillance under FISA is permitted based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power, irrespective of whether the target is suspected of engaging in criminal activity. The USA PATRIOT Act expanded law enforcement authority to conduct searches and obtain communications under Title III, and also rolled back the already lax restrictions on the FBI's ability to gather information about individuals under FISA.

As it considered the legislation that would become the USA PATRIOT Act in the weeks after 9/11, Congress understood a sunset provision would provide an opportunity to review the most extreme of the government's new investigative powers at a later, less chaotic time. As Washington Post journalist Robert O’Harrow Jr. has reported:

Giving criminal investigators unchecked access to FISA powers could break down constitutional safeguards against unreasonable searches and seizures, leading to abuses against U.S. citizens. Dick Armey, one of the most conservative members in Congress . . . was already discussing a "sunset" provision to the new law, placing time limits on how long parts of it would remain in effect. A sunset provision would guarantee that some of the most troubling new powers would be revisited by Congress, giving lawmakers an important check on executive authority.

In its final report, the 9/11 Commission recommended (pdf) that the the burden of proof for showing that Congress should renew USA PATRIOT Act powers subject to sunset should be on President Bush. Specifically, the president must show that each power actually materially enhances security and that there is adequate supervision of the use of such powers to ensure that civil liberties are protected. If the power is granted, the Commission emphasized, there must be adequate guidelines and oversight to properly confine its use. The Commission further stated, "[b]ecause of concerns regarding the shifting balance of power to the government, we think that a full and informed debate on the Patriot Act would be healthy."

However, the Department of Justice has revealed very little information to the public about its use of investigative powers under the USA PATRIOT Act. The agency provided some information to the House Judiciary Committee in response to oversight questions in July 2002 (pdf) and May 2003 (pdf),but considers much information concerning its use of USA PATRIOT Act authorities to be classified and therefore available only to Congress' intelligence committees.

Expiring Sections

Section 201: Wiretapping in terrorism cases

The FBI may intercept wire, oral, or electronic communications under Title III only while investigating certain specific crimes. This section of the USA PATRIOT Act added several crimes to the list for which federal courts may authorize wiretapping of people’s communications under the pre-USA PATRIOT Act federal statute 18 U.S.C. § 2516. These additional crimes include:

Because the government already has substantial authority under FISA to intercept communications while investigating suspected terrorists from other countries, the substantial effect of this amendment may be to permit wiretapping of United States persons suspected of domestic terrorism.

The Department of Justice reported that as of March 10, 2005, Section 201 has been used four times in two separate investigations.

Section 202: Wiretapping in computer fraud and abuse felony cases

Section 202 added computer fraud and abuse to the list of crimes the FBI may obtain a court order to investigate under Title III. Computer espionage, extortion, and intentionally damaging a federal computer are among the activities that fall within the scope of Section 202.

The Department of Justice reported that as of March 10, 2005, Section 202 has been used twice in a single computer fraud investigation.

Section 203(b): Sharing wiretap information

Subsection 203(b) allows the FBI to disclose evidence obtained under Title III to federal officials, including "law enforcement, intelligence, protective, immigration, national defense [and] national security" officials. To fall within Subsection 203(b), the information must contain "foreign intelligence," "counterintelligence," or "foreign intelligence information," and its disclosure must be "appropriate to the proper performance of the official duties of the officer making or receiving the disclosure."

Prior to Subsection 203(b), existing wiretap law allowed wiretap evidence to be disclosed under certain circumstances, but did not include explicit authorization to disclose such information to federal intelligence officials.

The Justice Department reported (pdf) that it had made disclosures to the intelligence community under Subsection 203(b) two times as of July 26, 2002.

Section 203(d): Sharing foreign intelligence information

This subsection allows for the disclosure of any foreign intelligence information, counterintelligence information, or information pertaining to foreign intelligence -- however collected -- to the federal officials listed above, if no other law restricts or prohibits such disclosure. This section also provides for disclosure of threat information obtained during criminal investigations to "appropriate" federal, state, local, or foreign government officials for the purpose of responding to the threat. Such information can include threat of attack, other "grave hostile acts," sabotage, terrorism, or clandestine intelligence gathering activities.

The Department of Justice reported (pdf) that disclosure of information obtained through grand juries convened during criminal investigations concerning foreign intelligence had been made under Section 203 approximately 40 times as of July 26, 2002. The agency did not explain whether the information was foreign intelligence, counterintelligence, or information about foreign intelligence because "information in international terrorism cases tends to to qualify under all three definitions." The Justice Department also declined to say how many separate grand juries produced the information because it does not maintain that data.

Section 204: FISA pen register/trap and trace exceptions

Section 204 states that foreign intelligence surveillance is exempted from statutory prohibitions against the use of pen register or trap and trace devices, which capture "addressing" information about the sender and recipient of a communication. Prior to the USA PATRIOT Act, FISA was already exempt from laws prohibiting wiretapping and acquisition of current and stored communications records.

This section also exempted the U.S. government from general prohibitions against intercepting electronic communications, in addition to pre-existing exemptions for intercepting wire and oral communications. This means that stored voice-mail communication may be obtained by the government through a search warrant rather than through more stringent wiretap orders.

The Department of Justice has not made public any information about how it has used its expanded authority under Section 204.

Section 206: FISA roving wiretaps

Section 206 expanded FISA to permit "roving wiretap" authority, which allows the FBI to intercept any communications made to or by an intelligence target without specifying the particular telephone line, computer or other facility to be monitored. Prior law required third parties (such as common carriers and others) "specified in court-ordered surveillance" to provide assistance necessary to accomplish the surveillance. Under Section 206, that obligation has been extended to unnamed and unspecified third parties.

Such generic orders could have a significant impact on the privacy rights of large numbers of innocent users, particularly those who access the Internet through public facilities such as libraries, university computer labs and cybercafes. Upon the suspicion that an intelligence target might use such a facility, the FBI can now monitor all communications transmitted at the facility. The problem is exacerbated by the fact that the recipient of the assistance order (for instance, a library) would be prohibited from disclosing the fact that monitoring is occurring.

Generic roving wiretap orders raise significant constitutional issues, as they do not comport with the Fourth Amendment's requirement that any search warrant "particularly describe the place to be searched." That deficiency becomes even more significant when where the private communications of law-abiding American citizens might be intercepted incidentally.

When asked by the House Judiciary Committee in 2002 how many times it has used Section 206 to conduct roving surveillance, the Department of Justice refused to answer (pdf), stating that the number is classified. On its public web site, the agency says it has used Section 206 49 times as of March 30, 2005.

Section 207: Duration of FISA surveillance of non-United States agents of a foreign power

Section 207 extended the duration of FISA wiretap orders relating to an agent of foreign power from 90 days to 120 days, and now allows an extension of one year intervals instead of 90 day increments as required under pre-USA PATRIOT Act law.

In addition, the section amends timelines for FISA physical search orders. Such searches targeting an agent of a foreign power may now be issued for up to 120 days, with extensions for up to one year. Before the USA PATRIOT Act, such orders could be issued for 45 days and extended for up to year. The section also extends the duration of other general physical search orders from 45 to 90 days.

Because the FBI could seek extensions for FISA orders before the USA PATRIOT Act was passed, it is unclear why this authority is necessary.

No information has been made public about how the Department of Justice has used the expanded timelines under Section 207.

Section 209: Seizure of voicemail messages pursuant to warrants

Section 209 declares that the government only needs a search warrant to obtain voice mail messages under Title III rather than a wiretap order, which is more difficult to obtain. Messages stored on an answering machine tape, however, remain outside the scope of this section.

The Department of Justice has not made public any information on its use of expanded power under Section 209 to access voice mail, though it maintains the authority has "been used to obtain evidence in a variety of criminal cases[.]"

Section 212: Emergency disclosure of electronic surveillance

Section 212 allows providers of communication services (such as telephone companies and Internet service providers) to disclose to the FBI consumer records if they believe immediate danger of serious physical injury is involved. Communication providers cannot be sued for such disclosure.

The FBI reported (pdf) in May 2003 that Section 212 has been used to disclose records to help law enforcement trace a kidnapper's communications and investigate bomb threats against a school. The Department of Justice also says Section 212 allowed the FBI to learn that unknown individuals had threatened to kill executives at a company in another country unless ransom was paid.

Section 214: FISA pen register/trap and trace authority

Section 214 made it easier for the FBI to use FISA to obtain information through pen register/trap and trace devices, which capture information about the sender and recipient of a communication.

First, this provision extended FISA pen register/trap and trace authority to electronic communications, such as email and Internet communications, as well as wire communications, such as telephone calls.

Second, Section 214 removed the pre-existing legal requirement that the government show the surveillance target is "an agent of a foreign power" before obtaining a pen register/trap and trace order under the FISA. The government can now obtain a pen register/trap and trace device "for any investigation to gather foreign intelligence information," without a showing that the device has, is or will be used by a foreign agent or by an individual engaged in international terrorism or clandestine intelligence activities. However, the section prohibits the use of FISA pen register/trap and trace surveillance against a United States citizen where the investigation is conducted "solely on the basis of activities protected by the First Amendment."

This amendment significantly eviscerates the constitutional rationale for the relatively lax requirements that apply to foreign intelligence surveillance. That laxity is premised on the assumption that Congress and the courts should not unduly restrain the Executive Branch, in pursuit of its national security responsibilities to monitor the activities of foreign powers and their agents. The removal of the "foreign power" predicate for pen register/trap and trace surveillance upsets that delicate balance.

Though a Department of Justice web site makes clear that the FBI has used its authority under Section 214, the Department has refused to provide (pdf) the House Judiciary Committee the number of times the FBI has used this expanded authority to obtain a pen register or trap and trace order, stating the answer is classified.

Section 215: FISA access to tangible items

Before the USA PATRIOT Act, FISA allowed the FBI the ability to request orders to access business records related to hotels and motels, automobile rental agencies and storage rental facilities. These requests had to include "specific and articulable facts giving reason to believe the person to whom the record pertain [was] a foreign or an agent of a foreign power." 50 U.S.C. § 1862(b)(2).

Section 215 expands this authority, now including any tangible item, regardless of who is holding it, and now only requires that the FBI is seeking records relevant to an investigation of foreign intelligence or terrorist activities. The requirement that access to records must be granted by a court order remains in effect.

This section permits the FBI to compel production of any record or item without a showing of "probable cause" (the existence of specific facts to support the belief that a crime has been committed or that the items sought are evidence of a crime). Individuals served with a search warrant issued under FISA rules may not disclose, under penalty of law, the existence of the warrant or the fact that records were provided to the government.

Section 215 prohibits investigation of a United States person solely on the basis of activities protected by the First Amendment.

In September 2003, the Department of Justice reported that it had never used Section 215 to seek business records. However, the Department now states that federal judges have granted 35 requests for Section 215 orders as of March 30, 2005. The orders were used to obtain driver's license records, public accommodation records, apartment lease records, credit card records, and telephone subscriber records for phone numbers captured under pen register and trap and trace authority.

Section 217: Interception of computer trespasser communications

Before the USA PATRIOT Act, nobody could intentionally intercept or disclose the contents of any intercepted communications -- regardless of whether that communication occurred in person, by telephone or through a computer -- unless that person complied with the requirements of Title III. Title III was subject to several statutory exceptions, including the consent of one of the participants in the conversation. Section 217 created a new exception that permits the government to intercept the "communications of a computer trespasser" if the owner or operator of a "protected computer" authorizes such interception.

The exception has broad implications, given that a "protected computer" includes any computer "used in interstate or foreign commerce or communication" (which, with the Internet, includes effectively any computer). The "authorization" assistance permits wiretapping of the intruder's communications without any judicial oversight, in contrast to most federal communication-intercept laws that require objective oversight from someone outside the investigative chain.

No information has been made public about how the Department of Justice has used its expanded authority Section 217.

Section 218: Purpose for FISA orders

Section 218 expanded the application of FISA to those situations where foreign intelligence gathering is merely "a significant" purpose of the investigation, rather than the sole or primary purpose, which was previously the required standard. This change allows the FBI to obtain FISA wiretap orders in situations where an investigation is primarily criminal in nature.

The more lenient standards that the government must meet under FISA (as opposed to the stringent requirements of Title III) are justified by the fact that FISA's provisions facilitate the collection of foreign intelligence information, not criminal evidence. This traditional justification is eliminated where the lax FISA provisions are applicable to the interception of information relating to a domestic criminal investigation. The change is a serious alteration to the delicate constitutional balance reflected in the prior legal regime governing electronic surveillance.

When asked by the House Judiciary Committee how many more FISA applications had been approved as a result of Section 218, the Department of Justice responded (pdf) in July 2002, "[b]ecause we immediately began using the new 'significant purpose' standard after passage of the PATRIOT Act, we had no occasion to make contemporaneous assessments on whether our FISAs would also satisfy a 'primary purpose' standard. Therefore, we cannot respond to this question with specificity."

Section 220: Nationwide service of search warrants for electronic evidence

Section 220 expands the geographic scope of where the FBI can obtain search warrants or court orders for electronic communications content and customer record information. Before the passage of the USA PATRIOT Act, a search warrant or court order for access to electronic communications content and customer record information had to been issued in the judicial district where the ISP or telephone company possessing the evidence was located. Section 220 makes it possible for any federal court to approve such a search warrant or court order, regardless of where the evidence is. This makes it possible for the FBI to seek out judges that are sympathetic to law enforcement interests to approve warrants for electronic evidence. Furthermore, this arrangement makes it more difficult for an ISP or telephone company to challenge a search warrant or court order from a court far from where the company is located.

When asked by the House Judiciary Committee how many search warrants have been served under Section 220 in jurisdictions other than that of the court issuing the warrant, the Department of Justice responded in July 2002, "[a]lthough the exact number of search warrants for electronic evidence that have been executed outside the issuing district is unknown, the impact of Section 220 has plainly been significant."

Section 223: Civil liability and discipline for privacy violations

Section 223 provides that individuals can sue the government for unauthorized disclosure of information obtained through surveillance, which serves to limit misuse of communications captured through lawful surveillance. It is unclear whether the cause of action must be raised before sunset, or whether the fact that the offense occurred before sunset is sufficient to bring a cause of action after sunset.

According to the Department of Justice, as of May 13, 2003, there had been "no administrative disciplinary proceedings or civil actions initiated under Section 223 of the [USA PATRIOT] Act for unauthorized disclosures of intercepts." A Department web site states that "[t]o date, no lawsuits have been filed against the government under section 223."

Section 225: Provider immunity for FISA wiretap assistance

Section 225 provides immunity from lawsuits for people who disclose information to the government pursuant to a FISA wiretap order, physical search order or an emergency wiretap or search.

Sunset Exceptions

The USA PATRIOT Act sunset provision contains two exceptions. One covers foreign intelligence investigations that began before December 31, 2005, and the other covers particular or potential criminal cases that began before December 31, 2005. The definition of a "potential" offense is unclear. It could mean, for instance, that an offense that occurred before December 31, 2005, but was not discovered until after that date may still be investigated under the pre-sunset USA PATRIOT Act. Alternatively, it could refer to crimes for which preparation began prior to the sunset date, but actual criminal activity did not occur until afterward.

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Last Updated: November 18, 2005
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