Order Code RL32186
CRS Report for Congress
Received through the CRS Web
USA Patriot Act Sunset:
Provisions That Expire
on December 31, 2005
Updated June 10, 2004
Charles Doyle
Senior Specialist
American Law Division
Congressional Research Service ˜ The Library of Congress

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USA PATRIOT Act Sunset: Provisions That Expire on
December 31, 2005
Summary
Several sections of Title II of the USA PATRIOT Act (the Act) relating to
enhanced foreign intelligence and law enforcement surveillance authority expire on
December 31, 2005. Thereafter, the authority remains in effect only as it relates to
foreign intelligence investigations begun before sunset or to offenses or potential
offense begun or occurring before that date. There may be some disagreement of
whether a “potential offense” is a suspected crime, an incomplete crime, or both.
The consequences of sunset are not the same for every expiring section. In
some instances the temporary provision has been replaced with a permanent one; in
some, other provisions have been made temporary by attached to an expiring section;
in still others, the apparent impact of termination has been mitigated by related
provisions either in the Act or elsewhere.
The temporary provisions are: sections 201 (wiretapping in terrorism cases),
202 (wiretapping in computer fraud and abuse felony cases), 203(b) (sharing wiretap
information), 203(d) (sharing foreign intelligence information), 204 (Foreign
Intelligence Surveillance Act (FISA) pen register/trap & trace exceptions), 206
(roving FISA wiretaps), 207 (duration of FISA surveillance of non-United States
persons who are agents of a foreign power), 209 (seizure of voice-mail messages
pursuant to warrants), 212 (emergency disclosure of electronic surveillance), 214
(FISA pen register/ trap and trace authority), 215 (FISA access to tangible items), 217
(interception of computer trespasser communications), 218 (purpose for FISA
orders), 220 (nationwide service of search warrants for electronic evidence), 223
(civil liability and discipline for privacy violations), and 225 (provider immunity for
FISA wiretap assistance).
The unimpaired provisions of Title II are: sections 203(a)(sharing grand jury
information), 203(c)(procedures for grand jury and wiretap information sharing that
identifies U.S. persons), 205 (employment of translators by the Federal Bureau of
Investigation), 208 (adding 3 judges to FISA court), 210 (access to payment source
information from communications providers), 211 (communications services by
cable companies), 213 (sneak and peek warrants), 216 (law enforcement pen register/
trap and trace changes), 219 (single-jurisdiction search warrants for terrorism), 221
(trade sanctions), and 222 (provider assistance to law enforcement agencies).
This report is available in an abridged version (without its footnotes, chart, and
most of its citations to authority) as CRS Report RS21704, USA PATRIOT Act
Sunset: A Sketch.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Temporary Sections of Title II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sections 201 (authority to intercept wire, oral, and electronic
communications relating to terrorism) and 202 (authority to intercept
wire, oral, and electronic communications relating to computer fraud
and abuse offenses) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Subsections 203(b) (authority to share electronic, wire, and oral
interception information) and 203(d) (general authority to share
foreign intelligence information) . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 204 (clarification of intelligence exceptions from limitations on
interception and disclosure of wire, oral, and electronic
communications) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 206 (roving surveillance authority under the Foreign Intelligence
Surveillance Act of 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 207 (duration of FISA surveillance of non-United States persons
who are agents of a foreign power) . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 209 (seizure of voice-mail messages pursuant to warrants) . . . 7
Section 212 (emergency disclosure of electronic surveillance) . . . . . . . 8
Section 214 (pen register and trap and trace authority under FISA) . . . 8
Section 215 (access to records and other items under the Foreign
Intelligence Surveillance Act) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 217 (interception of computer trespasser communications) . . . 9
Section 218 (foreign intelligence information) . . . . . . . . . . . . . . . . . . 10
Section 220 (nationwide service of search warrants for electronic
evidence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 223 (civil liability for certain unauthorized disclosures) . . . . 12
Section 225 (immunity for compliance with FISA wiretap) . . . . . . . . 14
Unimpaired Sections of Title II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
List of Tables
Table 1. Expiring USA PATRIOT Act Sections and Subsections . . . . . . . . . . . 16

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USA PATRIOT Act Sunset: Provisions That
Expire on December 31, 2005
(a) In General. — Except as provided in subsection (b), this title and the
amendments made by this title (other than sections 203(a) 203(c), 205, 208, 210, 211,
213, 216, 219, 221, and 222, and the amendments made by those sections) shall cease to
have effect on December 31, 2005.
(b) Exceptions. — With respect to any particular foreign intelligence investigation
that began before the date on which the provisions referred to in subsection (a) cease to
have effect, or with respect to any particular offense or potential offense that began or
occurred before the date on which such provisions cease to have effect, such provisions
shall continue in effect. P.L. 107-56, §224, 18 U.S.C. 2510 note (emphasis added).
Introduction
Subsection 224(a) of the USA PATRIOT Act (the Act) indicates that various
sections in Title II of the Act are to remain in effect only until December 31, 2005.
Subsection 224(b) creates two exceptions for matters that straddle the termination
date, one for foreign intelligence investigations and the other for criminal cases.
Even quick reading of section 224 raises a number of questions. What is the
substance of the temporary sections that disappear on December 31, 2005? What is
the breath of the subsection 224(b) exceptions? What is the fate and impact of
amendments to the expiring sections or to related provisions of law, enacted after
passage of the USA PATRIOT Act but before December 31, 2005? What is the
substance of the sections in Title II that continue on unimpaired by virtue of their
inclusion in the “other-than” list of the subsection 224(a)?
Temporary Sections of Title II
Sections 201 (authority to intercept wire, oral, and electronic
communications relating to terrorism) and 202 (authority to intercept
wire, oral, and electronic communications relating to computer fraud
and abuse offenses).
Federal courts may authorize wiretapping — the interception of wire, oral or
electronic communications — for law enforcement purposes in connection with the
investigation of one or more specifically designated, serious federal crimes (predicate
offenses), 18 U.S.C. 2516. Sections 201 and 202 temporarily add crimes to this
predicate offense list. Section 202 places felonious violations of 18 U.S.C. 1030
(computer fraud and abuse) on the list; section 201 contributes:
• 18 U.S.C. 229 (chemical weapons);
• 2332 (crimes of violence committed against Americans overseas);

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• 2332a (weapons of mass destruction);
• 2332b (multinational terrorism);
• 2332d (financial transactions with a country designated a sponsor of
terrorism);
• 2339A (providing material support to a terrorist), and
• 2339B (providing material support to a terrorist organization).
Subsection 224(b) states that, “With respect to any particular foreign
intelligence investigation that began before the date on which the provisions referred
to in subsection (a) cease to have effect, or with respect to any particular offense or
potential offense that began or occurred before the date on which such provisions
cease to have effect, such provisions shall continue in effect,” P.L. 107-56, §224, 18
U.S.C. 2510 note. Thus it would seem law enforcement officials may seek a wiretap
order in conjunction with an investigation of any of the offenses added to the
predicate offense list by sections 201 or 202, as long as the particular offense or
potential offense begins or occurs before December 31, 2005. But what is a
“potential offense” in this context?
It may mean a suspected offense. In some instances, like murder or bank
robbery, there is little doubt that a crime has been committed and the investigation
is concerned with who committed it and how. In other instances, such as fraud or
material support of a terrorist organization, the investigation may be concerned with
whether a crime has occurred at all. The term “potential offense” may have been
added out of an abundance of concern that in phrasing the exception so that a
criminal investigation need not predate sunset (unlike foreign intelligence
investigations) the exception would be limited to the type of crimes whose
commission is generally known with certainty before an investigation begins.
Yet as a general rule, when Congress uses ordinary words, it is presumed to
have intended them to have their commonly understood meaning.1 The word
“potential” usually contemplates the incomplete or the unfulfilled or the undeveloped
or unawakened possibility rather than the suspect or uncertain.2 On the other hand,
there is redundancy in construing the term “potential offense” to mean an inchoate
1 National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 109-110 (2002), quoting,
Walters v. Metropolitan Ed. Enterprises, Inc., 519 U.S. 202, 207 1997)(“In the absence of
an indication to the contrary, words in a statute are assumed to bear their ordinary,
contemporary, common meaning”).
2 “[P]otential, adj. Capable of coming into being; possible,” BLACK’S LAW DICTIONARY,
1188 (7th ed. 1999); “potential. adj. [ME potencial, LL potentialis potential, powerful, fr.
LL potential dynamis, state of that which is not yet fully realized & L potentia potency] 1a.
existing in possibility: having the capacity or a strong possibility for development into a
state of actuality. . . b. having the capacity for acting or being acted upon and hence for
undergoing change . . . .” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE
ENGLISH LANGUAGE UNABRIDGED, 1775 (1986)(phonetic pronunciation guide omitted).

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offense or an incomplete offense or conduct with some but not all of the elements
needed for a crime. Such crimes are already covered as crimes that “began” before
December 31, 2005.
A related amendment, enacted after the Act, raises additional questions. Section
201 adds to the wiretap predicate offense list using these words, “Section 2516(1) of
title 18, United States Code, is amended . . . (2) by inserting . . . the following new
paragraph: ‘(q) any criminal violation section 229 (relating to chemical weapons); or
sections 2332, 2332a, 2332b, 2332d, 2339A, or 2339B of this title (relating to
terrorism); or’.”
Public Law 107-197 (Implementation of the International Convention for the
Suppression of Terrorist Bombings), however, subsequently provides that, “Section
2516(1)(q) . . . is amended by — (1) inserting ‘2332f’ after ‘2332,’ and (2) striking
‘or 2339B’ and inserting ‘2339B, or 2339C’.” 116 Stat. 728 (2002).
Thus, section 201 enacts 18 U.S.C. 2516(1)(q); section 201 and therefore 18
U.S.C. 2516(1)(q) expires on December 31, 2005; P.L. 107-197 amends subsection
2516(1)(q); and therefore on the face of things the later amendment expires with the
rest of 2516(1)(q).
The language of the statute may indicate that the P.L. 107-197 amendments
expire with the rest of subsection 2516(1)(q), but the scant legislative history might
suggest that Congress intended to add the new crimes, 18 U.S.C. 2332f(bombing
public buildings and places) and 2339C (financing terrorism), to the wiretap
predicate offense list permanently. The House Judiciary Committee report (there is
no Senate report), for instance, notes the addition of the new crimes not only to the
wiretap predicate list, but to the list of “Federal crimes of terrorism” in 18 U.S.C.
2332b(g)(5)(B), to the predicate offense list for 18 U.S.C. 2339A (assistance of
terrorists), and to the forfeiture predicate list in 18 U.S.C. 981(a)(1) — “This section
of the bill, which is not required by the treaty but will assist in Federal enforcement,
adds the new 18 U.S.C. §§2332f and 2339C to four existing provisions of law,”
H.Rep.No. 107-307, at 14 (2001). Other than its placement, there is nothing to
indicate Congress intended to insert the new crimes temporarily on the wiretap
predicate list but permanently on the other lists. The reasons for making the section
224 provisions temporary do not seem to apply to the treaty implementing provisions;
the additions were made to implement treaty obligations not root out 9/11 terrorists.
On the other hand, the treaty deals with terrorism offenses and the crimes added
to subsection 2516(1)(q) are much like those already found there. More importantly,
the clearest indication of what Congress means is what it says. It said the treaty-
implementing crimes should be added to that portion of the wiretap predicate list that
is clearly scheduled to expire. In other instances when called upon to construe a
statute in apparent contradiction to its precise language, the courts have been loath
to rewrite a statute in the name of statutory construction.3
3 Barnhard v. Sigmon Coal Co. , 534 U.S. 438, 461-62 (2002), quoting, Connecticut Nat.
Bank v. Germain,503 U.S. 249, 253-54 (1992)(“We have stated time and again that courts
must presume that a legislature says in a statute what it means and means in a statute what

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Subsections 203(b) (authority to share electronic, wire, and oral
interception information) and 203(d) (general authority to share foreign
intelligence information).
Evidence obtained through a court-ordered wiretap for federal law enforcement
purposes may be disclosed under limited circumstances (e.g., testimony in judicial
proceedings or disclosure to other law enforcement officials for official use), 18
U.S.C. 2517. Prior to the Act, there was no explicit authorization for disclosure to
intelligence officials.
Subsection 203(b) amends federal wiretap law to permit law enforcement
officials to disclose wiretap evidence to various federal officials (“law enforcement,
intelligence, protective, immigration, national defense [and] national security
official[s]”) when it involves foreign intelligence, counterintelligence, or foreign
intelligence information, 18 U.S.C. 2517(6).
Subsection 203(d) authorizes law enforcement officers to share foreign
intelligence, counterintelligence, and foreign intelligence information with the same
set of federal officials notwithstanding any other legal restriction.
The subsections use the same definitions for foreign intelligence,
counterintelligence and foreign intelligence information:
The term “foreign intelligence information” means:
(a) information, whether or not it concerns a United States person, that relates to the
ability of the United States to protect against —
•
actual or potential attack or other grave hostile acts of a foreign power or its agent;
•
sabotage or international terrorism by a foreign power or its agent; or
•
clandestine intelligence activities by an intelligence service or network of a foreign power
or by its agent; or
(b) information, whether or not it concerns a United States person, with respect to a
foreign power or foreign territory that relates to —
•
the national defense or the security of the United States; or
•
the conduct of the foreign affairs of the United States. 18 U.S.C. 2510(19)
The term “foreign intelligence” means information relating to the capabilities, intentions, or
activities of foreign governments or elements thereof, foreign organizations, or foreign persons,
or international terrorist activities. 50 U.S.C. 401a(2).
The term “counterintelligence” means information gathered and activities conducted to protect
against espionage, other intelligence activities, sabotage, or assassinations conducted by or on
behalf of foreign governments or elements thereof, foreign organizations, or foreign persons,
or international terrorist activities. 50 U.S.C. 401a(3).
The authority for disclosure under subsections 203(b) or 203(d) sunsets on
December 31, 2005, unless either the foreign intelligence investigation or crime
exception can be claimed. Both subsections list “law enforcement, intelligence,
protective, immigration, national defense [and] national security official[s]” as
permissible recipients. Yet since subsection 224(b) exempts only foreign
it says there. When the words of a statute are unambiguous, then, this first canon is also the
last: judicial inquiry is complete”).

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intelligence and criminal investigations, the post-December 31, 2005 exceptions
might be thought to limit the continued authority of subsections 203(b) and 203(d)
to disclosures to law enforcement and intelligence officials and not to allow
disclosures to protective, immigration, national defense and national security
officials. At most, the extended authority can only apply to disclosures related to
criminal or foreign intelligence investigations.
The termination of authority under subsection 203(b) may be of little
consequence, since (A) the wiretap law’s disclosure and use prohibitions, 18 U.S.C.
2511(1)(c), (d), only outlaw the disclosure and use of information gleaned from
illegal wiretaps; they say nothing of the disclosure and use of official purposes of
information gathered from lawful interceptions; (B) the wiretap law elsewhere
authorizes disclosure of wiretap information to law enforcement officers, 18 U.S.C.
2517(1); and (C) the subsequently-passed Homeland Security Act authorizes
disclosure, in separate subsections, to a wide range of officials particularly when
confronted with the more serious foreign intelligence situations, P.L. 107-296, §896,
116 Stat. 2257 (2002) (18 U.S.C. 2517(7),(8)).4
The Homeland Security Act’s treatment of the general law enforcement
disclosure to intelligence authorities found in subsection 203(d) is a bit different. It
adopts language much like that which it provides in the wiretap context of subsection
203(b). But rather than placing the amendment in a separate subsection so that it
survives the passing of the USA PATRIOT Act subsection on December 31, 2005,
it embeds the amendment in subsection 203(d) thereby suggesting the amendment is
4 “(7) Any investigative or law enforcement officer, or other Federal official in carrying
out official duties as such Federal official, who by any means authorized by this chapter, has
obtained knowledge of the contents of any wire, oral, or electronic communication, or
evidence derived therefrom, may disclose such contents or derivative evidence to a foreign
investigative or law enforcement officer to the extent that such disclosure is appropriate to
the proper performance of the official duties of the officer making or receiving the
disclosure, and foreign investigative or law enforcement officers may use or disclose such
contents or derivative evidence to the extent such use or disclosure is appropriate to the
proper performance of their official duties.
“(8) Any investigative or law enforcement officer, or other Federal official in carrying
out official duties as such Federal official, who by any means authorized by this chapter, has
obtained knowledge of the contents of any wire, oral, or electronic communication, or
evidence derived therefrom, may disclose such contents or derivative evidence to any
appropriate Federal, State, local, or foreign government official to the extent that such
contents or derivative evidence reveals a threat of actual or potential attack or other grave
hostile acts of a foreign power or an agent of a foreign power, domestic or international
sabotage, domestic or international terrorism, or clandestine intelligence gathering activities
by an intelligence service or network of a foreign power or by an agent of a foreign power,
within the United States or elsewhere, for the purpose of preventing or responding to such
a threat. Any official who receives information pursuant to this provision may use that
information only as necessary in the conduct of that person’s official duties subject to any
limitations on the unauthorized disclosure of such information, and any State, local, or
foreign official who receives information pursuant to this provision may use that
information only consistent with such guidelines as the Attorney General and Director of
Central Intelligence shall jointly issue,” 18 U.S.C. 2517(7),(8).

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intended to terminate with the rest of subsection 203(d), P.L.107-296, §897(a), 116
Stat. 2257 (2002)(50 U.S.C. 403-5d).5
Section 204 (clarification of intelligence exceptions from limitations
on interception and disclosure of wire, oral, and electronic
communications).
Section 204 is essentially a technical amendment. Prior wiretap law makes it
clear that the general prohibitions against wiretapping, 18 U.S.C. 2511, and against
the acquisition of communications records and stored electronic communications, 18
U.S.C. 2701, do not preclude foreign intelligence gathering activities in international
or foreign communications systems, 18 U.S.C. 2511(2) (f)(2000 ed.). Section 204
amends the provision to add that the general prohibition against the use of pen
registers or trap and trace devices, 18 U.S.C. 3121, is likewise no impediment to such
activities, 18 U.S.C. 2511(2)(f).6
Section 206 (roving surveillance authority under the Foreign
Intelligence Surveillance Act of 1978).
Section 206 authorizes assistance for the installation and use of multi-point
FISA wiretaps, 50 U.S.C. 1805(c)(2)(B). Prior to the Act, a FISA wiretap order
could include directions that a specifically identified communications carrier,
landlord, or other individual assist in the execution of the order, 50 U.S.C.
5 “Section 203(d)(1) of the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) (Public Law
107-56; 50U.S.C. 403-5d) is amended by adding at the end the following: ‘Consistent with
the responsibility of the Director of Central Intelligence to protect intelligence sources and
methods, and the responsibility of the Attorney General to protect sensitive law enforcement
information, it shall be lawful for information revealing a threat of actual or potential attack
or other grave hostile acts of a foreign power or an agent of a foreign power, domestic or
international sabotage, domestic or international terrorism, or clandestine intelligence
gathering activities by an intelligence service or network of a foreign power or by an agent
of a foreign power, within the United States or elsewhere, obtained as part of a criminal
investigation to be disclosed to any appropriate Federal, State, local, or foreign government
official for the purpose of preventing or responding to such a threat. Any official who
receives information pursuant to this provision may use that information only as necessary
in the conduct of that person’s official duties subject to any limitations on the unauthorized
disclosure of such information, and any State, local, or foreign official who receives
information pursuant to this provision may use that information only consistent with such
guidelines as the Attorney General and Director of Central Intelligence shall jointly issue,’”
P.L.107-296, §897(a), 116 Stat. 2257 (2002).
6 See e.g., “This section is a technical and conforming amendment that would add chapter
206 (relating to pen registers/trap and trace orders) to section §2511(f) of the Wiretap
Statute. Section 2511(f) provides that nothing in chapter 119 (relating to the interception
of communications), chapter 121 (relating to stored wire and electronic communications and
transaction records access), or section 705 of the Communications Act of 1934, ‘shall be
deemed to affect the acquisition by the United States Government of foreign intelligence
information form international or foreign communications, or foreign intelligence activities
conducted in accordance with otherwise applicable Federal law. . . .’ The bill would include
chapter 206 under that §2511(f),” H.Rep.No. 107-307 at 55 (2001).

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1805(c)(2)(B) (2000 ed.). Section 206 amends FISA to permit a general command
for assistance where the target of the surveillance has taken steps to thwart the
identification of any specific person by “rapidly changing hotel accommodations, cell
phones, Internet accounts, etc, just prior to important meetings or communications.”7
The law enforcement wiretap statute has a similar provision for law enforcement
orders, 18 U.S.C. 2518(4).
The subsection 224(b) exceptions provisions seem rather obviously applicable.
The authority continues in effect after December 31, 2005, with respect to any
foreign intelligence investigation initiated prior to that time. There have been no
amendments related to section 206 since its enactment.
Section 207 (duration of FISA surveillance of non-United States
persons who are agents of a foreign power).
Under FISA before passage of the Act, FISA wiretap orders with the agent of
a foreign power as their target had a maximum duration of 90 days, and could be
extended in 90 day increments, 50 U.S.C. 1805(e)(2000 ed.). FISA physical search
orders and extensions were good for no more than 45 days (but up to 1 year if a
foreign power was the target), 50 U.S.C. 1824(d)(2000 ed.). Section 207 amends the
time lines. FISA wiretap orders relating to the agent of foreign power may remain
in effect for up to 120 days and may be extended at 1 year intervals, 50 U.S.C.
1805(e). As a general rule, FISA physical search orders and extensions may be
authorized for 90 days (unless they target a foreign power), but orders with an agent
of a foreign power as their target may be issued for up to 120 days with extensions
for up to 1 year, 50 U.S.C. 1824(d).
The provisions of section 207 have not been amended. They would appear to
remain available for use with respect to any foreign intelligence investigation
predating December 31, 2005, but otherwise to expire on that date.
Section 209 (seizure of voice-mail messages pursuant to warrants).
At one time, at least some courts felt that authorities needed a wiretap order
rather than a search warrant to seize voice mail, United States v. Smith, 155 F.3d
1051 (9th Cir. 1998). Section 209 treats voice mail like e-mail, subject to seizure
under a search warrant rather than a more demanding wiretap order law, 18 U.S.C.
2703.
The authority under section 209 terminates on December 31, 2005 except for
investigations relating to offenses or potential offenses begun or occurring before
then. As earlier indicated the precise reach of the “potential offense” exception is
uncertain. The provisions of section 209 have not been substantively amended.
7 Administration’s Draft Anti-Terrorism Act of 2001: Hearing Before the House Comm.
on the Judiciary, 107th Cong., 1st Sess. 56 (2001); H.Rep.No. 107-307 at 60.

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Section 212 (emergency disclosure of electronic surveillance).
Section 212 permits communications service providers to disclose either
customer records or the content of their customers’ communications in any
emergency situation that involves an immediate danger of physical injury, P.L. 107-
56, §212(a)(1)(D), 115 Stat. 284-85 (2001). The Homeland Security Act repeals
section 212’s provision governing content disclosure in emergency situations and
recasts it as a separate provision, 18 U.S.C. 2702(b)(7), but says nothing of the
emergency disclosure of customer records, 18 U.S.C. 2703(c)(4). As a consequence,
the authority to disclose customer records in an emergency situation disappears on
December 31, 2005 (except with respect to crimes or potential crimes beginning or
occurring before then), but the free standing emergency content disclosure provision
which replaced its section 212 predecessor remains in effect.
Section 214 (pen register and trap and trace authority under FISA).
Section 214 makes several adjustments in the FISA pen register/trap and trace
device procedures. FISA once permitted applications for a FISA pen register or trap
and trace device order to acquire information relevant to a foreign intelligence or
international terrorism investigation and upon the additional certification that the
telephone communications monitored would likely to be either (1) those of an
international terrorist or spy (“individual . .. engaged in international terrorism or
clandestine intelligence activities that . . . involve a violation of [U.S.] criminal
laws”) or (2) those of a foreign power or its agent relating to the criminal activities
of an international terrorist or spy, 50 U.S.C. 1842(a)(1), (c)(2), (c)(3), (i)(2000 ed.).
Section 214 opens the FISA pen register/trap and trace device procedure to both
wire and electronic communications (e.g. telephone, e-mail, Internet
communications), 50 U.S.C. 1824(i). It drops the requirement that the
communications be those of international terrorists or spies or be related to their
activities, 50 U.S.C. 1824(c)(2). It adds the caveat that any investigation of a U.S.
person for which a order is secured “to protect against international terrorism or
clandestine intelligence activities” may not be conducted based solely on activities
protected by the first amendment to the Constitution, 50 U.S.C. 1842(a)(1), (c)(2).
It adds this same caveat with respect to emergency FISA pen register or trap and trace
device use, 50 U.S.C. 1843(a),(b)(1).
Except for on-going investigations, the FISA pen register/trap and trace device
provisions revert to form on December 31, 2005. No relevant amendments have
been enacted since passage of the Act.

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Section 215 (access to records and other items under the Foreign
Intelligence Surveillance Act).
FISA originally authorized a FISA court order (in a terrorism investigation or
an effort to gather foreign intelligence information) for FBI access to the business
records of hotels, motels, car and truck rental agencies, and storage rental facilities,
50 U.S.C. 1862 (2000 ed.). An application for such an order had to assert that there
were “specific and articulable facts giving reason to believe that the person to whom
the records pertain [was] a foreign or an agent of a foreign power,” 50 U.S.C.
1862(b)(2)(2000 ed.). Section 215 expands the authority to include not only business
records but any tangible item regardless of the business or individual holding the item
and upon the simple assertions that the records are sought in an effort to obtain
foreign intelligence (not based solely on the First Amendment protected activities of
a U.S. person) or in a terrorism investigation, 50 U.S.C. 1861).8
Section 215 expires on December 31, 2005, except with respect to on-going
foreign intelligence investigations, at which point the law reverts to the hotel-motel-
car-rental business records procedure that the predates the Act. There are no
subsequent amendments to the Act or to FISA that alter the consequences of that
reversion, but the impact of expiration may be mitigated by changes in the law
governing “national security letters” that provide access to a wider range of business
records after sunset.
Provisions in the Right to Financial Privacy Act, the Fair Credit Reporting Act,
and chapter 121 of title 18 of the United States Code, authorize the FBI when
investigating international terrorism or clandestine intelligence activities to request
access to business records held by banks, credit report agencies, and communications
carriers, 12 U.S.C. 3414, 15 U.S.C. 1681, 18 U.S.C. 2709. Section 374 of the 2004
intelligence authorization act amends the Right to Financial Privacy Act to give the
FBI access to business records held not only by banks, but by credit card companies,
car dealers, real estate agencies, stock brokers, jewelers, and certain other business
occasionally marked by large cash transactions, P.L. 108-177, 117 Stat.2628 (2003).
Section 217 (interception of computer trespasser communications).
Federal wiretap law proscribes the interception of telephone, face to face, or
computer conversations, subject to certain narrow exceptions such as the issuance of
a wiretap order or the consent of one of the participants in the conversation, 18
U.S.C. 2511. Computer service providers occasionally discover that trespassers have
established electronic outposts within their systems. Section 217 allows providers
to consent to law enforcement interception of communications to and from these
outposts, 18 U.S.C. 2511(2)(i).
8 The Act itself limited authority under section 215 to cases involving “investigations to
protect against international terrorism and clandestine intelligence activities,” but a later
intelligence authorization act amended the section to include “investigations to obtain
foreign intelligence information not concerning a United States person,” P.L. 107-108,
§314(a)(6), 115 Stat. 1402 (2001).

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CRS-10
The authority under section 217 expires on December 31, 2005. There have
been no amendments relevant to section 217 since its passage and the sunset
exceptions for ongoing intelligence investigations or for investigations of earlier
crimes seem likely to be of limited application here. The exception, however, applies
“with respect to any . . . potential offense that began or occurred before” December
31, 2005. In this context, “potential offenses” may refer those crimes for which
preparation but not completion predates December 31, 2005; for example, computer
trespassing with an eye to launching a denial of service attack at some future date.
Section 218 (foreign intelligence information).
At one time, applications for a FISA wiretap or physical search order were
required to certify that “the” purpose for seeking the order was to obtain foreign
intelligence information, 50 U.S.C. 1804(a)(7)(B), 1823(a)(7)(B)(2000 ed.). This,
and FISA’s minimization requirements, among other things, led to the view that
FISA required a wall of separation between law enforcement and intelligence
investigations. Section 218 was designed to promote greater cooperation and
information sharing by approving applications where the gathering of foreign
intelligence information need be no more than a “significant” reason for the
application, 50 U.S.C. 1804(a)(7)(B), 1823(a)(7)(B). The FISA review court
concluded that this standard permits applications where intelligence information
collection supplies some measurable reason for the application and that the provision
passes constitutional muster, In re Sealed Case, 310 F.3d 717, 735-46 (F.I.S.Ct.Rev.
2002).
Section 218 sunsets on December 31, 2005 except with respect to foreign
intelligence investigations initiated before that date. Whether the wall of separation
between criminal and foreign intelligence investigations will be or must be
reconstructed at that point is unclear at best. Section 314 of the Act adds language
to the FISA wiretap and physical search schemes (which does not sunset) calling for
continued cooperation and declaring cooperation no bar to the certification in a FISA
application of an intelligence-gathering purpose, 50 U.S.C. 1806(k), 1825(k).9
Moreover, the Department of Justice and the FISA review court now appear to doubt
that FISA prior to passage of the Act required such a wall of separation.10 There
9 “Federal officers who conduct electronic surveillance to acquire foreign intelligence
information under this title may consult with Federal law enforcement officers to coordinate
efforts to investigate or protect against — (A) actual or potential attack or other grave
hostile acts of a foreign power or an agent of a foreign power; (B) sabotage or international
terrorism by a foreign power or an agent of a foreign power; or (C) clandestine intelligence
activities by an intelligence service or network of a foreign power or by an agent of a foreign
power. (2) Coordination authorized under paragraph (1) shall not preclude the certification
required by section 104(a)(7)(B) [50 U.S.C. 1804] or the entry of an order under section
105,” 50 U.S.C. 1806(k). The language of subsection 1825(k) is essentially the same.
10 “[I]t is quite puzzling that the Justice Department, at some point during the 1980s, began
to read the statute as limiting the Department’s ability to obtain FISA orders if it intended
to prosecute the targeted agents. . . . The origin of what the government refers to as the false
dichotomy between foreign intelligence information that is evidence of foreign intelligence
crimes and that which is not appears to have been a Fourth Circuit case decided in 1980. .
. .Apparently to avoid running afoul of the primary purpose test used by some courts, the

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CRS-11
have been no relevant amendments.

Section 220 (nationwide service of search warrants for electronic
evidence).
Before the Act, federal authorities could gain access to a communications
service provider’s customer records and the content of their electronic
communications either through the use of a search warrant or in some instances a
court order, 18 U.S.C. 2703. Certainly in the case of the search warrant and arguable
in the case of the court order, the warrant or order could only be issued in the judicial
district in which it was to be executed, F.R.Crim.P. 41; 18 U.S.C. 3127 (2000 ed.).
This proved inconvenient and sometimes frustrating where the criminal investigation
was conducted in one district and the communications provider was located in
another, H.Rep.No. 107-307, at 57.
Section 220 addresses the difficulty by authorizing the court in the district where
the crime occurred to issue search warrants to be served anywhere in the country for
access to electronic communications content and customer record information (which
by virtue of section 209, discussed above, now includes content and records of voice,
e-mail, and other electronic communications), 18 U.S.C. 2703, 3127.
The authority under section 220 terminates on December 31, 2005 except with
respect to earlier crimes or potential crimes. Section 219, however, mitigates the
impact of section 220’s expiration in certain terrorism cases. Section 219 is not
subject to the sunset provision. It provides for at least nation-wide, and perhaps
1995 Procedures limited contacts between the FBI and the Criminal Division in cases where
FISA surveillance or searches were being conducted by the FBI for foreign intelligence (FI)
or foreign counterintelligence FCI) purposes. The procedures stated that ‘the FBI and
Criminal Division should ensure that advice intended to preserve the option of a criminal
prosecution does not inadvertently result in either the fact or the appearance of the Criminal
Division’s directing or controlling the FI or FCI investigation toward law enforcement
objectives’ Although these procedures provided for significant information sharing and
coordination . . . they eventually came to be narrowly interpreted with the Department of
Justice . . . as requiring . . . a wall to prevent the FBI intelligence officials from
communicating with the Criminal Division regarding ongoing FI or FCI investigations. The
Department’s attitude changed somewhat after [internal and General Accounting Office
reports] concluded that the Department’s concern over how the FISA court or other federal
courts might interpret the primary purpose test has inhibited necessary coordination between
intelligence and law enforcement officials. [The internal] report also concluded, based on
the text of FISA and its legislative history, that not only should the purpose of the
investigation not be inquired into by the courts, but also that Congress affirmatively
anticipated that the underlying investigation might well have a criminal as well as foreign
counterintelligence objective . . . . In short, even though we agree that the original FISA did
not contemplate the false dichotomy, the Patriot Act actually did — which makes it no
longer false. The addition of the word ‘significant’ to section 1804(a)(7)(B) imposed a
requirement that the government have a measurable foreign intelligence purpose, other than
just criminal prosecution of even foreign intelligence crimes,” 310 F.3d at 723, 725, 727,
735 .

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CRS-12
world-wide, service of federal search and arrest warrants in cases of international or
domestic terrorism as defined in 18 U.S.C. 2331.11
Section 223 (civil liability for certain unauthorized disclosures).
Unrelated to section 223, federal law imposes criminal penalties for illegal
wiretapping, 18 U.S.C. 2511, unlawful access to store communications (e.g., e-mail
or voice mail), or illegally using a pen register or trap and trace device, 18 U.S.C.
3121. Except with respect to pen registers and trap and trace devices, the same
misconduct also triggers civil liability, 18 U.S.C. 2520, 2707. There is a comparable
set of provisions imposing criminal and civil liability for FISA surveillance and
physical search violations, 50 U.S.C. 1809, 1810, 1827, 1828.
Although the federal wiretap statute outlaws use or disclosure of unlawfully
intercepted communications, 18 U.S.C. 2511(1)(c), (d), and describes narrow
circumstances under which communications intercepted under a court order may be
used or disclosed, 18 U.S.C. 2517, without more, it does not expose to civil or
criminal liability those who disclose or use communications lawfully intercepted
under a court order.12
Section 223 confirms the authority of agency heads to discipline federal officers
and employees for willful or intentional violations of federal wiretap or stored
communications law, 18 U.S.C. 2520(f), 2707(d). It also imposes civil liability for
any willful use or disclosure of information beyond that authorized by those two
statutory schemes, 18 U.S.C. 2520(g), 2707(g). Finally, the section creates a cause
of action against the United States for the benefit of victims of willful violations of
11 “[A] magistrate judge — in an investigation of domestic terrorism or international
terrorism (as defined in 18 U.S.C. 2331) — having authority in any district in which
activities related to the terrorism may have occurred, may issue a warrant for a person or
property within or outside that district,” F.R.Crim.P. 41(b)(3).
“[T]he term ‘international terrorism’ means activities that — (A) involve violent acts
or acts dangerous to human life that are a violation of the criminal laws of the United States
or of any State, or that would be a criminal violation if committed within the jurisdiction of
the United States or of any State; (B) appear to be intended — (i) to intimidate or coerce a
civilian population; (ii) to influence the policy of a government by intimidation or coercion;
or (iii) to affect the conduct of a government by mass destruction, assassination, or
kidnaping; and (C) occur primarily outside the territorial jurisdiction of the United States,
or transcend national boundaries in terms of the means by which they are accomplished, the
persons they appear intended to intimidate or coerce, or the locale in which their
perpetrators operate or seek asylum . . . .
“[T]he term ‘domestic terrorism’ means activities that — (A) involve acts dangerous
to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be intended — (i) to intimidate or coerce a civilian population; (ii) to influence
the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a
government by mass destruction, assassination, or kidnaping; and (C) occur primarily within
the territorial jurisdiction of the United States,” 18 U.S.C. 2331(1), (5).
12 Disclosure of the existence of the tap (rather than of its results) may be punishable under
the anti-tip off provisions of 18 U.S.C. 2332(d), which proscribes disclosure, with the intent
to obstruct, of the fact that a wiretap order has been sought or granted, United States v.
Aguilar, 515 U.S. 593 (1995).

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CRS-13
federal wiretap law, the stored communications proscriptions, or the FISA
requirements relating to surveillance, physical searches or the use or installation of
pen registers or trap and trace devices, 18 U.S.C. 2712.
There have been no amendments to section 223. The precise application of the
sunset provision and its exceptions to the cause of action created in section 223
appears somewhat uncertain. Reading only the language of termination and before
considering the exception, any cause of action created by section 223 seems to expire
on December 31, 2005. This could mean either that no suit (pending or merely
actionable) survives thereafter, or alternatively that pending suits survive but none
may be filed thereafter, or that regardless of when it is filed any cause of action will
only survive with respect to matters occurring prior to that date.
Under some circumstances the demise of a cause of action deprives the courts
of subject matter jurisdiction. Long standing Supreme Court precedent holds that
“when a law conferring jurisdiction is repealed without any reservation as to pending
cases, all cases fall with the law.”13
Taking the exception into consideration, the language on its face seems to say
that section 223 continues in effect “with respect to any particular foreign intelligence
investigation that began before [December 31, 2005], or with respect to any particular
offense or potential offense that began or occurred before” December 31, 2005; that
is, a cause of action arising out of foreign intelligence investigation initiated before
the date of expiration or out of a criminal investigation of conduct occurring before
the date survives — regardless of when the conduct giving rise to the cause of action
occurred.
On the other hand, subsection 224(b) may speak only to investigations not to
causes of action. It may be that the exception is intended to do no more than extend
investigative powers conveyed by other expiring sections of the Act. The exceptions
may be calculated to do no more than to avoid cutting off investigations pending as
of December 31, 2005. Although the language seems to point more strongly to a
different conclusion, this view is compatible with the general rule that authority to
sue the United States should be narrowly construed.14
13 Republic National Bank v. United States, 506 U.S. 80, 565-66 (1992)(Thomas, J.
concurring), quoting, Bruner v. United States, 343 U.S. 112, 116-17 (1952); see also,
Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994).
14 Dept. of Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999)(“the waiver of sovereign
immunity is to be strictly construed”); Lane v. Pena, 518 U.S. 187, 192 (1996).

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CRS-14
Section 225 (immunity for compliance with FISA wiretap).
Federal wiretap law immunizes those who assist in the execution of a law
enforcement interception order, 18 U.S.C. 2511(2)(a), FISA supplies the similar
immunity for those who assist in the execution of a FISA pen register or trap and
trace device order, 50 U.S.C. 1842(f). Section 225 provides immunity for those who
assist in the execution of a FISA wiretap order or of a FISA physical search order or
in case of an emergency FISA wiretap or search, 50 U.S.C. 1805(h).
Except for assistance provided with respect to investigations begun beforehand,
section 225 immunity disappears on December 31, 2005. As with the expiring
“cause of action”clauses of the section 223, the expiring “no cause of action” clauses
of section 225, may be subject to a number of interpretations. If the sunset exception
in section 224(b) does no more than continue pending investigations in place, then
it is no more likely to preserve a grant of immunity than to grant a cause of action.
Conversely, both a cause of action and immunity from liability arising out of an
investigation might be thought to survive because they can be characterized as
matters “[w]ith respect to any particular foreign intelligence investigation” or “with
respect to any particular offense or potential offense” began or occurring before
December 31, 2005.
Unimpaired Sections of Title II
Subsection 224(a) cites several sections and subsections of Title II that are not
subject to its declaration of sunset. They are:
• section 203(a)(authority to share grand jury information) (permitting the
disclosure of matters occurring before a federal grand jury — that involve
foreign intelligence or counterintelligence or foreign intelligence information
— to federal law enforcement, intelligence, protective, immigration, national
defense, or national security officials), F.R.Crim.P. 6(e)(3)(D);
• section 203(c)(procedures) (directing the Attorney General to establish
procedures for the disclosures authorized in section 203(a)[grand jury matters]
and 203(b)[relating to similar disclosure of information secured through the
execution of a court order authorizing the interception of wire, oral or electronic
communications for law enforcement purposes] that identify a “United States
person”), 18 U.S.C. 2517 note;
• section 205 (employment of translators by the Federal Bureau of Investigation)
(authorizing the Federal Bureau of Investigation (FBI) to expedite the hiring of
translators to support counterterrorism investigations and operations), 28 U.S.C.
532 note;
• section 208 (designation of judges) (authorizing the expansion of the FISA
court from 7 to 11 judges and insisting that at least 3 of the judges reside within
20 miles of the District of Columbia), 50 U.S.C. 1803;
• section 210 (scope of subpoenas for records of electronic communications)
(expands the authority for subpoenas directing communications service

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CRS-15
providers to disclose customer-identifying information to include information
concerning customer payment sources (e.g., credit card or bank account), 18
U.S.C. 2703;
• section 211 (clarification of scope) (makes it clear that when cable companies
provide Internet or other communications services they are subject to the same
law enforcement access procedures that apply to other communications service
providers and not to the cable provider procedures that require customer
notification when law enforcement access is to be afforded), 47 U.S.C. 551;
• section 213 (authority for delaying notice of the execution of a warrant)
(authorizes sneak and peek warrants, i.e., warrants that call for delayed
notification of their execution for a reasonable period if notification would have
adverse consequences and that only permit the seizure of tangible property when
reasonably necessary), 18 U.S.C. 3103a(b);
• section 216 (modification of authorities relating to the use of pen registers and
trap and trace devices) ((1) modifies the pen register/trap and trace device
procedure — the procedure for court orders authorizing law enforcement
installation and use of pen registers or trap and trace devices (essentially
surreptitious caller id devices that identify only the source and destination of
telephone calls) — to apply to electronic communications (e.g., e-mail
addresses and Internet URL’s); and (2) permits execution of the orders
anywhere within the United States, rather than only in the judicial district in
which the order is issued), 18 U.S.C. 3121, 3123;
• section 219 (single-jurisdiction search warrants for terrorism) (amends the
Federal Rules of Criminal Procedure to permit magistrates in terrorism cases to
issue search and arrest warrants to be executed outside of the judicial district in
which they are sitting), F.R.Crim.P. 41(b)(3);
• section 221 (trade sanctions) (makes it clear that the Trade Sanctions Reform
and Export Enhancement Act does not limit the application of criminal and civil
sanctions available for violation of various anti-terrorism provisions), 22 U.S.C.
7210; and
• section 222 (assistance to law enforcement agencies) (confirms that those who
help law enforcement authorities execute an order approving the installation and
use of trap and trace devices or pen registers are entitled to reasonable
reimbursement and that nothing in the Act is intended to impose technical
obligations or requirements upon them), 18 U.S.C. 3124 note.

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CRS-16
Table 1. Expiring USA PATRIOT Act Sections and Subsections
Section
Description
Observation
201 (18 U.S.C.
Adds to the wiretap predicate offense
P.L. 107-197, §301(a), 116
2516(1)(q))
list: 18 U.S.C. 229 (chemical weapons),
Stat. 728 (2002) adds new
2332 (crimes of violence against
crimes (18 U.S.C. 2332f
Americans overseas), 2332a (weapons
(bombing public places),
of mass destruction), 2332b
2339C (financing terrorism))
(multinational terrorism), 2332d
to the expiring portion of the
(financial transactions with terrorist
wiretap predicate list, 18
countries), 2339A (supporting
U.S.C. 2516(1)(q)
terrorists), 2339B (supporting terrorist
organizations)
202 (18 U.S.C.
Adds to the wiretap predicate offense
What does “potential offense”
2516(1)(c))
list: 18 U.S.C. 1030 (computer fraud &
mean for this and other
abuse)
sections of the Act? A
suspected crime? Or conduct
that may blossom into a crime?
(E.g., computer trespass before
12/31/05 for purposes
launching a denial of service
attack thereafter?) Or both?
203(b)(18 U.S.C.
Authorizes disclosure of foreign
Disclosure to law enforcement
2517(6))
intelligence, counterintelligence, and
officials is authorized under a
foreign intelligence information -
permanent subsection, 18
gathered thru a Title III court ordered
U.S.C. 2517(1); P.L.107-296,
wiretap- to law enforcement,
§896, 116 Stat. 2257 (2002)
intelligence, protective, immigration,
permanently authorizes
national defense, and national security
disclosure to foreign law
officials
enforcement officials, and in
cases of counterintelligence,
international terrorism, or
clandestine intelligence to
federal, state, and/or foreign
officials, 18 U.S.C. 2517 (7),
(8)
203(d)(50 U.S.C.
Other provisions of law
P.L. 107-296, §897(a), 116
403-5d)
notwithstanding, authorizes disclosure
Stat. 2257 (2002), amends the
of foreign intelligence,
temporary provisions of
counterintelligence, and foreign
§203(d) to permit disclosure
intelligence information -gathered in a
when consistent with the needs
criminal investigation - to law
to protect sources and methods
enforcement, intelligence, protective,
and sensitive law enforcement
immigration, national defense, and
information; the amendment
national security officials
expires with its host
204 (18 U.S.C.
Makes it clear that the general pen
Amendment seems purely
2511(2)(f))
register/trap & trace device
technical.
proscriptions do not bar foreign
intelligence gathering involving foreign
communications systems.

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CRS-17
Section
Description
Observation
206 (50 U.S.C.
Authorizes directives in FISA
Title III affords similar
1805(c)(2)(B))
surveillance orders commanding the
authority for law enforcement
assistance of individuals not
purposes in a permanent
specifically identified in the order
section, 18 U.S.C. 2518(4)
(where the target has taken steps to
prevent the identification of specific
individuals)(“roving surveillance”)
207 (50 U.S.C.
Extends the permissible duration of
The expiring section also
1805(e), 1824(d))
FISA surveillance and physical search
temporarily extends the
orders directed against agents of a
general maximum duration of
foreign power to 120 days and permits
FISA physical search orders
extensions at intervals of up to 1 year
from 45 to 90 days
(up from 90 days (surveillance) & 45
days (searches) for both original orders
and extensions)
209 (18 U.S.C.
Makes it clear that the law enforcement
At least one court had held that
2709,
access to voice mail requires only a
seizure of voice mail required
2510(1),(14))
search warrant
a Title III court order, U.S. v.
Smith, 155 F.3d 1051 (9th Cir.
1998); except while being sent,
e-mail can be seized pursuant
to a search warrant, 18 U.S.C.
2703
212 (18 U.S.C.
Permits communications service
P.L. 107-296, §225(d), 116
2702, 2703)
providers to disclose either customer
Stat. 2157 (2002) repeals the
records or the content of customer
emergency content disclosure
communications in an emergency
provision and replaces it with
situation involving the immediate
broader, permanent provision,
danger of serious bodily injury
18 U.S.C. 2702(b)(7);
emergency record disclosure
authority expires on 12/31/05
214 (50 U.S.C.
Permits the use of FISA pen
The expiring section also
1842, 1843)
register/trap & trace device orders with
declares, with respect to FISA
respect to electronic communications
pen register/trap & trace
(e-mail address, URL identification but
device orders or the use of
not content) under procedure previous
such devices in FISA
limited to wire communications
emergency situations, that U.S.
(telephone number of source and
persons may not be targeted
addressee); eliminates the requirement
based solely on their 1st
that the communication either be that of
Amendment protected
terrorists or spies or related to their
activities
criminal activities

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CRS-18
Section
Description
Observation
215 (50 U.S.C.
Authorizes FISA court orders for FBI
Language revived upon sunset
1861, 1862)
access to tangible items in
of §215 authorizes FISA court
investigations to protect against
orders in foreign intelligence
terrorism or spying (or per P.L. 107-
information or terrorist
108, §314(a)(6), 15 Stat. 1402 (2001)
investigations for FBI access
to obtain foreign intelligence
to business records relating
information not concerning a U.S.
public transportation, lodging,
person)
vehicle rental, or storage rental
upon an assertion of the
presence of specific and
articulable facts giving reason
to believe that the records
related to a foreign power or
agent of foreign power; P.L.
108-177, §374, 117 Stat. 2628
(2003) expands the Right to
Financial Privacy Act’s
national security letter
provision to allow access - in
terrorism or spy investigations
- to business records held by
banks, credit card companies,
car dealers, real estate
agencies, stock brokers,
jewelers, casinos and certain
other business that may be
party to large cash
transactions, 12 U.S.C. 3414
217 (18 U.S.C.
Authorizes the interception of
Does the sunset exception for a
2511(2)(i),
communications to and from a
“potential” crime apply to
2510(21))
trespasser within a protected computer
authority under §217 with
respect to trespass before but a
communication after 12/31/05
relating to a denial of service
attack after sunset?
218 (50 U.S.C.
Permits FISA surveillance or search
In re Sealed Case, 310 F.3d
1804(a)(7)(B),
orders based on a certification that
717 (F.I.S.Ct.Rev. 2002); the
1823(a)(7)(B))
foreign intelligence gathering provides
Justice Dept. study cited there;
a “significant” reason for seeking the
and permanent FISA
order; earlier language (revived at
amendments in the USA
sunset) referred to “the” reason and was
PATRIOT Act (50 U.S.C.
one basis for the early conclusion that
1806(k), 1825(k)) suggest that
FISA investigations and any related
perhaps the earlier
criminal investigation should be
intelligence/law enforcement
sequential rather than cooperative
wall of separation will/need
not be reconstructed after
12/31/05
220 (18 U.S.C.
Authorizes service anywhere in the
Section 219, which does not
2703, 3127)
world of a court order granting law
sunset, allows federal
enforcement access to the content of
magistrates in international and
voice mail and e-mail communications
domestic terrorism cases to
(and/or related records) held by service
issue search or arrest warrants
providers ; prior to §220 the such
that may be executed anywhere
orders had to be issued in the place
in the world, F.R.Crim.P.
where they were to be executed
41(b)(3)

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CRS-19
Section
Description
Observation
223 (18 U.S.C.
Creates a cause of action against the
There may be some question
2520(f),(g),
U.S. for willful violations of Title III
whether any cause of action
2707(d),(g),
(18 U.S.C. ch.119) or of FISA; makes
pending or unfiled dies on
2712)
it clear that the improper disclosure of
12/31/05
information gathered in a court-ordered
wiretaps, or use of a pen register or trap
& trace device, or access to wire or
electronic communications (e.g., e-
mail, voice mail) is unlawful; confirms
the authority of agency heads to take
disciplinary action based on
willful/intentional privacy violations
225 (50 U.S.C.
Provides immunity for those who aid in
Civil liability for FISA
1805(h)
the execution of FISA surveillance or
violations under permanent
search order or in the performance of
provisions is predicated upon
an emergency FISA wiretap or search
intentional, unauthorized
violation of FISA (50 U.S.C.
1810, 1809, 1828, 1827)

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