Order Code RL32186
CRS Report for Congress
Received through the CRS Web
USA PATRIOT Act Sunset:
Provisions That Expire
on December 31, 2005
Updated January 27, 2005
Charles Doyle
Senior Specialist
American Law Division
Congressional Research Service ˜ The Library of Congress
USA PATRIOT Act Sunset: Provisions That Expire on
December 31, 2005
Summary
Several sections of Title II of the USA PATRIOT Act (the act) and one section
of the Intelligence Reform and Terrorism Prevention Act each relating to enhanced
foreign intelligence and law enforcement surveillance authority expire on December
31, 2005. The authority remains in effect only with respect to foreign intelligence
investigations begun before sunset or to offenses or potential offense begun or
occurring before that date. Aside from the fact there may be some disagreement of
whether a “potential offense” is a suspected crime, and/or an incomplete crime,
and/or a future crime, after December 31, 2005 the law reverts to its previous form
unless it has been amended or extended in the interim. The 9/11 Commission
mentioned the approaching sunset and thought as a general matter that “a full and
informed debate on the PATRIOT Act would be healthy.”
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 attachment 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); and in the Intelligence Reform and Terrorism Prevention
Act, section 6001 (“lone wolf” FISA orders).
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.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Impact of Sunset . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Temporary Law Enforcement Sections of Title II . . . . . . . . . . . . . . . . . . . . . 3
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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Subsections 203(b) (authority to share electronic, wire, and oral
interception information) and 203(d) (general authority to share
foreign intelligence information) . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 204 (clarification of intelligence exceptions from limitations on
interception and disclosure of wire, oral, and electronic
communications) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 209 (seizure of voice-mail messages pursuant to warrants) . . 13
Section 212 (emergency disclosure of electronic surveillance) . . . . . . 15
Section 217 (interception of computer trespasser communications) . . 17
Section 220 (nationwide service of search warrants for electronic
evidence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 223 (civil liability for certain unauthorized disclosures) . . . . 23
Temporary Foreign Intelligence Sections . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 206 (roving surveillance authority under the Foreign Intelligence
Surveillance Act of 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 207 (duration of FISA surveillance of non-United States persons
who are agents of a foreign power) . . . . . . . . . . . . . . . . . . . . . . . 29
Section 214 (pen register and trap and trace authority under FISA) . . 31
Section 215 (access to records and other items under the Foreign
Intelligence Surveillance Act) . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 218 (foreign intelligence information (“the wall”)) . . . . . . . . 37
Section 223 (civil liability for certain unauthorized disclosures) . . . . 44
Section 225 (immunity for compliance with FISA wiretap) . . . . . . . . 45
Section 6001 of P.L. 108-458 (individual terrorists as agents of foreign
powers) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
USA PATRIOT Act Sections of Title II That Do Not Expire . . . . . . . . . . . 48
List of Tables
Table 1. Expiring USA PATRIOT Act Sections and Subsections . . . . . . . . . . . 50
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).
(a) In General.– Section 101(b)(1) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 180(b)(1) is amended by adding at the end the following
new subparagraph: “(C) engages in international terrorism or activities in
preparation therefore; or”.
(b) Sunset. – The amendment made by subsection (a) shall be subject to the
sunset provision in section 224 of Public Law 107-56 (115 Stat. 295), including
the exception provided in subsection (b) of such section 224. P.L. 108-458,
§6001, 118 Stat. 3742 (2004).
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 a 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 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)?
These questions are among those likely to be asked as twilight approaches. The
9/11 Commission noted the coming sunset, and expressed the belief that as a general
matter, “[b]ecause of the concerns regarding the shifting balance of power to the
government ...a full and informed debate on the Patriot Act would be healthy,” 9/11
Commission Report, 394 (2004).
The expiring sections deal with the power of federal authorities to conduct
searches and seizures, generally searches and seizures relating to communications.
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In most instances, they allow authorities to move more quickly; they reduce the
required layers of administrative and judicial approval; they permit searches and
seizures of a wider range of targets thus making these tools available earlier in an
investigation; and they allow authorities to coordinate their activities. In doing so,
they make it more likely that terrorism and crime will be prevented and that terrorists
and criminals will be caught and punished. They accomplish these things, however,
by easing or removing safeguards designed to protect individual privacy and to
prevent government abuse. And so, they increase the risk that government authority
will be abused and that the privacy of those who are neither terrorists nor criminals
will be invaded. The debate over sunset is a debate of where the balance should be
struck.
To further complicate the debate, in some instances the expiring sections curtail
rather than expand governmental authority; bolster rather than erode the safeguards
against governmental overreaching or abuse of authority.
Impact of Sunset
Subject to the exceptions of subsection 224(b), the new sections of law and the
amendments to existing law, created by the sections of the act that expire on
December 31, 2005, will cease to exist after that date. The same is true for any
subsequent amendments to the expiring sections. They expire along with their hosts.
Pre-existing provisions of law, repealed or amended by the expiring sections, will be
revived automatically, unless they themselves have been repealed or amended by
intervening legislation (as several have).
The impact of subsection 224(b) is somewhat more difficult to discern. It
provides two standards: one with respect to “any particular foreign intelligence
investigations that began” before sunset and a second with respect to “any particular
offense or potential offense that began or occurred” before sunset, P.L. 107-56, §224,
18 U.S.C. 2510 note. The first seems fairly straightforward. The authority granted
by an expiring provision of the act may be exercised after sunset or may continue to
be exercised after sunset, with respect to any foreign intelligence investigation
initiated before sunset.
The second comes with questions. What is a “potential offense”? Does the
phrase refer to pre-sunset circumstances whose criminality is determined in a post-
sunset investigation? Or does the phrase also include post-crimes that evolved out
of pre-sunset circumstances which themselves constituted neither crimes nor
elements of a crime? 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, the unfulfilled, the
undeveloped, or the unawakened possibility, rather than the suspected or uncertain
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”).
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possibility.2 That might suggest the term was intended at least in part to apply to
post-sunset crimes that grow out pre-sunset circumstances. Although hardly a term
of art, earlier federal courts have used the term to describe possible past offenses in
some cases,3 and to describe possible future offenses in others.4 Congress in
subsection 224(b), however, is not referring to all “potential offenses,” but only to
those “that began or occurred” before sunset. Offenses occurring entirely after sunset
cannot be said to have begun or occurred beforehand. Thus, although it is scarcely
beyond debate, Congress appears to have added the term “potential offense” out of
an abundance of caution lest the exception be read to extend only to investigations
of conduct whose criminality was known prior to sunset but not of pre-sunset
conduct whose innocence or criminality was only ultimately determined after sunset.
Temporary Law Enforcement Sections of Title II
The expiring law enforcement sections of Title II of the USA PATRIOT Act
involve three communications-related aspects of federal law: wiretapping; stored
electronic communications and communication transaction records; and pen registers
and trap and trace devices. Federal law prohibits the interception of telephone, face
to face, and electronic communications (wiretapping), subject to certain exceptions
including a procedure for judicially supervised law enforcement interceptions, 18
U.S.C. 2510-2520 (Title III).5 With the approval of senior Justice Department
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).
3 E.g., United States v. Hart, 324 F.3d 575, 579 (8th Cir. 2003)(emphasis added)(“Hart
provided his corporation’s tax identification number to Plaza Motors, and Plaza Motors
reported all its commission payments to the government on Form 1099s ... Neither Hart nor
Midtown Motors filed tax returns for the income reported by Plaza Motors. Thus, the
government clearly had notice of a potential offense”); United States v. Rivera, 906 F.2d
319, 322 (7th Cir. 1990)(emphasis added)(“The court below found that there were three
potential offenses that needed investigation or citation [when officers stopped Rivera’s car]:
The material obstruction, Rivera’s erratic driving, and his passenger’s (later discovered)
nonwearing of a seat belt”).
4 E.g., Screws v. United States, 325 U.S. 91, 157 (1945)(Roberts, J., dissenting)(emphasis
added)(“By ... establishing as federal crimes violations of the vast, undisclosed range of the
Fourteenth Amendment, this Court now creates new delicate and complicated problems for
the enforcement of the criminal law. The answers given to these problems, in view of the
tremendous scope of potential offenses against the Fourteenth Amendment, are bound to
produce a confusion detrimental to the administration of criminal justice ”); Wyner v. Struhs,
254 F.Supp.2d 1297, 1302 (S.D.Fla. 2003)(emphasis added)(“Does the regulation [against
nudity on a state beach] serve a significant government interest? ... That interest in
protecting the public from the potential offense of nudity meets this standard ”).
5 18 U.S.C. 2510-2522 (chapter 119 of title 18 of the United States Code) is often referred
to as Title III, because it was originally enacted as Title III of the Omnibus Crime Control
and Safe Streets Act of 1968, P.L. 90-351, 82 Stat. 212 (1968). Even though Title III
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officials, federal law enforcement authorities may apply for a court order approving
the use of wiretapping in connection with the investigation of certain serious federal
crimes, 18 U.S.C. 2516, 2517, 2518. The orders must be narrowly drawn, of short
duration, and based upon probable cause to believe that they will generate evidence
relating to the predicate offenses under investigation, id. When the orders expire,
those whose communications have been intercepted must be notified, 18 U.S.C.
2518.
The procedure for law enforcement access to the content of wire and electronic
communications stored with communications providers and to provider transaction
records is somewhat less demanding, although it generally requires a court order,
warrant, or subpoena, 18 U.S.C. 2701-2702.
Pen registers and trap and trace devices surreptitiously capture the identity of the
sender and recipient of communications. The procedure for a court order approving
law enforcement installation and use of a pen register or a trap and trace device is
less demanding still, 18 U.S.C. 3121-3127.
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);
! 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).
Background. The Administration’s request for legislation submitted
immediately following the attacks of September 11, 2001 did not include any
proposal comparable to either section 201 or section 202, Administration’s Draft
Anti-Terrorism Act of 2001: Hearing Before the House Comm. on the Judiciary
(Hearing), 107th Cong., 1st Sess. (2001). Nor can any similar provision be found in
the legislation reported out of the House Judiciary Committee, H.Rept. 107-236
(2001). They appear first, and in the language ultimately enacted, in the initial
encompasses wire, oral and electronic communications it is often referred to as the
“wiretap” statute as a matter of convenience.
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version of S. 1510, 147 Cong. Rec. S10309 (daily ed. Oct. 4, 2001). They were
referred to as among the “number of sensible proposals that should not be
controversial,” 147 Cong. Rec. S10552 (daily ed. Oct. 11, 2001)(remarks of Senator
Leahy), and otherwise seem to have attracted little attention.
What Does Not Expire. Sections 201 and 202 expire on December 31, 2005.
By operation of subsection 224(b), 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.
The passing of section 201 will, in all probability, carry with it a subsequent
addition to the predicate list. Section 201 makes its additions to the wiretap predicate
offense list using these words (emphasis added), “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’.”
Again with emphasis added, Public Law 107-197 (Implementation of the
International Convention for the Suppression of Terrorist Bombings) 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) expire 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).
Yet although the language of the statute may indicate that the P.L. 107-197
amendments expire with the rest of subsection 2516(1)(q), 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.Rept. 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
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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.6
Considerations. The Justice Department indicates that “several recent
wiretap orders have been based on this expanded list of terrorism offenses
[authorized by section 201], including one involving a suspected domestic terrorist,
who was subsequently charged with unlawfully making an explosive bomb, as well
as another involving an individual with suspected ties to Columbian [sic] terrorists,”
U.S. Department of Justice, Report from the Field: The USA PATRIOT Act at Work
(Report), 26 (July, 2004).7
Critics might argue that the authority conveyed by sections 201 and 202 is
unnecessary. Neither the Justice Department’s Report nor its Dispelling the Myths
(Myths) report8 mention any use of the authority under section 202 (computer abuse
felonies). Moreover, federal law would seem to provide ample authority elsewhere
for wiretaps in the case of the two somewhat specific examples the Department
supplied for section 201. Federal explosives offenses and conspiracy to violate them
are among the existing permanent federal wiretap predicates, 18 U.S.C. 2516(1)(c),
(r); 844(d), (e), (f), (g), (h), (i). And it is not clear why wiretaps under the Foreign
Intelligence Surveillance Act (FISA) should not be adequate and perhaps even more
appropriate with respect to “an individual with suspected ties to Columbian
terrorists,” 50 U.S.C. 1804, 1805, 1801. Or so critics might contend.9
Such critics might argue that the statistics published annually by the
Administrative Office of the United States Courts indicate that the authority under
sections 201 and 202 is little used and little needed. Terrorism offenses are not even
designated as one of the major offense categories for which court-authorized
interceptions are granted, unlike narcotics (502 orders), racketeering (43), bribery (1),
gambling (2), homicide and assault (1), kidnaping (0), theft (0), or loansharking (5),
6 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
it says there. When the words of a statute are unambiguous, then, this first canon is also the
last: judicial inquiry is complete”).
7 Available on Jan. 6, 2005 at [http://www.lifeandliberty.gov/docs/071304_report_from_
the_field.pdf].
8 U.S. Department of Justice, Dispelling the Myths: Dispelling Some of the Major Myths
a b o u t t h e U S A P A T R I O T A c t , a va i l a b l e o n J a n . 6 , 2 0 0 5 a t
[http://www.lifeandliberty.gov/subs/add_myths.htm].
9 See also, Electronic Privacy Information Center, The USA PATRIOT Act (EPIC Report),
available on January 25, 2004 at [http://www.epic.org/privacy/terrorism/usapatriot] (Section
201 added crimes of terrorism or production/dissemination of chemical weapons as
predicate offenses under Title III, suspicion of which enable the government to obtain a
wiretap of a party’s communications. Because the government already had substantial
authority under FISA to obtain a wiretap of a suspected terrorist, the real effect of this
amendment is to permit wiretapping of a United State person suspected of domestic
terrorism.
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2003 Wiretap Report, Table 3 (2004), available on Jan. 6, 2005 at
[http://www.uscourts.gov].
Finally, critics – particularly those who view law enforcement use of
wiretapping with concern – might argue that the appropriate question is not how
many terrorists and criminals have been caught through use of the new authority, but
how often and under what circumstances the authority has been used in instances
where it proved to be a false trail; where the individuals whose conversations were
intercepted proved to have no incriminating ties to terrorists (Colombian or
otherwise) or criminal events (past, present or future).10
Summary. Section 201 permits the use of court-supervised wiretaps in cases
involving various terrorism offenses; section 202 permits such use in cases of felony
computer fraud or abuse.
! Here and elsewhere the full extent of the “potential offense” sunset
exception (224(b)) is unclear.
! The annual wiretap report suggests this authority has been little used.
! Section 201 authority has been used in a bomb case and case
involving suspected links to Colombian terrorists.
! Some may feel that alternative, permanent authority could have been
used in the two instances where the Justice Department notes section
201 authority has been used.
! There is no indication section 202 authority has ever been used.
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
10 Cf., Whitehead & Aden, Forfeiting “Enduring Freedom” for “Homeland Security”: A
Constitutional Analysis of the USA PATRIOT Act and the Justice Department’s Anti-
Terrorism Initiatives, 51 AMERICAN UNIVERSITY LAW REVIEW 1081, 1108-109
(2002)(Whitehead & Aden)(“[W]iretap orders are virtually never denied. . . . Despite the
apparent lack of judicial checks on the availability of wiretap orders before the passage of
the Patriot Act, the act expands their availability even further. Sections 201 and 202 of the
Patriot Act amend the Wiretap Act to allow the FBI to obtain wiretap warrants for
‘terrorism’ investigations, ‘chemical weapons’ investigations, or ‘computer fraud and abuse’
investigations. This expands the federal government’s wiretap authority into the broad, as-
yet-undefined area of ‘terrorism’ investigations and investigations relating to computer
use”).
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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).
Background. Federal law has long permitted wiretap generated information
to be shared with law enforcement officers for the performance of their duties, 18
U.S.C. 2517(1) (2000 ed.). The Administration’s initial proposal was to expand the
definition of “law enforcement officer” to include all federal officers and employees,
§103, H.R.--, Hearings at 70. It contended that:
At present, 18 U.S.C. §2517(1) generally allows information obtained via
wiretap to be disclosed only to the extent that it will assist a criminal
investigation. One must obtain a court order to disclose Title III information in
non-criminal proceedings. Section 109 [sic] would modify the wiretap statutes
to permit the disclosure of Title III-generated information to a non-law
enforcement officer for such purposes as furthering an intelligence investigation.
This will harmonize Title III standards with those of the Foreign Intelligence
Surveillance Act (FISA), which allows such information-sharing. Allowing
disclosure under Title III is particularly appropriate given that the requirements
for obtaining a Title III surveillance order in general are more stringent than for
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a FISA order, and because the attendant privacy concerns in either situation are
similar and are adequately protected by existing statutory provisions, Id. at 54.
A second Administration proposal sought general catch-all authority for
criminal investigators to share foreign intelligence information with federal law
enforcement, intelligence, protective immigration, customs, and military personnel,
notwithstanding any other provision of law – including the specifically mentioned
limitations on sharing grand jury and wiretap information, §154, H.R.--, Id. at 74.
The Administration’s explanation leaned heavily on the value of grand jury
disclosure and said nothing of its other Title III sharing request, Id. at 57 (The
Administration also proposed a complementary grand jury information sharing
measure, §354, H.R.--, Hearings at 86 (text), 62-3(explanation)).
Both Houses modified the proposals. The House Judiciary Committee trimmed
the Administration’s “law enforcement officer” language so that the amendment
defined law enforcement officer to include only law enforcement, intelligence,
national security and defense, protective and immigration personnel and then only for
the purposes of sharing foreign intelligence information, §103, H.R. 2975, H.Rept.
107-236, at 5 (2001). It split off the grand jury components from the second
proposal, and permitted sharing of grand jury matters only with court approval,
§§154, 353, H.R. 2975, Id. at 8, 30.
The Senate, in the approach carried through to enactment, merged the three
Administration sections into a single four-part section 203, S. 1510, 147 Cong. Rec.
S10309 (daily ed. Oct. 4, 2001). The first and third subsections (203(a) and 203(c))
dealt with sharing grand jury information and the Attorney General’s regulatory
authority. The second, subsection 203(b), was limited to the sharing of wiretap
produced foreign intelligence information; and the fourth, subsection 203(d),
constituted a general residual grant of authority (a “catch-all” or “notwithstanding
any other law” provision) for the disclosure to federal law enforcement, intelligence,
protective, military and immigration officials of foreign intelligence information
unearthed in a criminal investigation.
Apparently, at the time of passage it was unclear what legal obstacles subsection
203(d) cleared away. Subsection (a) addressed grand jury secrecy impediments and
subsection (c) spoke to Title III wiretap hurdles; what other legal barriers to
disclosure did subsection (d) order down? Some were uncertain,11 but the answer
may be of some consequence since another section of the act (sec. 905) requires the
Justice Department to disclose to the Director of Central Intelligence any foreign
intelligence information uncovered during the course of a criminal investigation –
unless otherwise provided by law.
11 See e.g., 147 Cong. Rec. S11002 (daily ed. Oct. 25, 2001)(remarks of Sen. Leahy)(“Even
the Administration, which wrote this provision, has not been able to provide a fully
satisfactory explanation of its scope. If there are specific laws that the Administration
believes impede the necessary sharing of information on terrorism and foreign intelligence
within the executive branch, we should address those problems through legislation that is
narrowly targeted to those statutes. Tacking on a blunderbuss provision whose scope we do
not fully understand can only lead to consequences that we cannot foresee”).
CRS-10
What Does Not Expire. The authority for disclosure under subsections
203(b)(wiretap) or 203(d)(catch-all) 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 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 disclosure 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 criminal 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 for official purposes
of information gathered from lawful interceptions; (B) the civil constrains on
unlawful disclosure by officials, established in section 223 of the act, likewise expire
on December 31, 2005; (C) the wiretap law elsewhere authorizes disclosure of
wiretap information to law enforcement officers, 18 U.S.C. 2517(1); and (D) the
subsequently-passed Homeland Security Act authorizes disclosure, in separate,
permanent 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)).12
12 “(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).
CRS-11
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 subsection on December 31, 2005, it embeds the
amendment in subsection 203(d) thereby suggesting the amendment is 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).13
Considerations. When the Justice Department speaks of how it has used the
authority granted by section 203, it ordinarily does so in general terms without
indicating whether it is referring to the grand jury secrecy release of subsection (a)
that does not expire or to the wiretap exception or catch-all authority of subsections
(b) and (d) that do expire. Its comments, however, do indicate that the authority
under one or more of the subsections has been used with some regularity: “the
Department has made disclosures of vital information to the intelligence community
and other federal officials under section 203 on dozens of occasions,” Myths at §203;
see also, Report at 8 (“The Department has made disclosures of vital information to
the intelligence community and other federal officials under section 203 on many
occasions. For instance, such disclosures have been used to support the revocation
of visas of suspected terrorists and prevent their reentry into the United States, track
terrorists’ funding sources, and identify terrorist operatives overseas”).
At an earlier time, the Justice Department had objected to language comparable
to subsection (b) allowing the disclosure of wiretap foreign intelligence information
to intelligence officials in part because it asserted in the more serious cases it was
unnecessary.14
13 “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).
14 146 Cong. Rec. S11119 (daily ed. Oct. 26, 2000)(letter from Ass’t Att’y Gen. Robert
Raben to Sen. Richard Shelby, dated Sept. 28, 2000)(“Section 10 would amend 18 U.S.C.
§2517 to permit the sharing of foreign intelligence or counterintelligence information,
collected by investigative or law enforcement officers under title III, with the intelligence
community. We oppose this provision. Although we recognize the arguments for allowing
CRS-12
Most wiretap orders – focused on narcotics trafficking, racketeering,
loansharking, and the like – do not seem likely to unearth evidence of international
terrorist activities, cf. 2003 Wiretap Report, Table 3. On the other hand, there seems
a real possibility that grand jury investigations would disgorge evidence of
international terrorism and other foreign intelligence information from time to time.
As a consequence the examples the Justice Department cites for the use of section
203 may seem most likely to have involved subsection (a)(disclosure of grand jury
information) rather than subsection (b)(disclosure of wiretap information).
Summary. Subsection (b) permits the disclosure of wiretap-generated foreign
intelligence information to federal law enforcement, intelligence, protective,
immigration and military personnel for official use.
! Permanent authority elsewhere allows for law enforcement sharing.
! Permanent authority enacted subsequently allows authorities to share
information concerning domestic or international terrorism with
federal, state, local and foreign officials.
! A prior Justice Department letter claimed the existence of authority
elsewhere to share wiretap generated information in the presence of
an overriding national security concern.
! It is not clear that the authority has ever been used.
! Subsection (d) permits the disclosure of foreign intelligence
information discovered in the course of a federal criminal
investigation notwithstanding any legal impediment.
! It is unclear what, if any, legal impediments exist.
! It is not clear that the authority has ever been used.
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
title III information to be shared as a permissible matter this would be a major change to
existing law and could have significant implications for prosecutions and the discovery
process in litigation. Any consideration of the sharing of law enforcement information with
the intelligence community must accommodate legal constraints such as Criminal Rule
6(e)[relating to grand jury secrecy] and the need to protect equities relating to ongoing
criminal investigations. While we understand the concerns of the Commission on
Terrorism, we believe that law enforcement agencies have authority under current law to
share title III information regarding terrorism with intelligence agencies when the
information is of overriding importance to the national security. Section 10 also raises
significant issues regarding the sharing with intelligence agencies of information collected
about United States persons. Such a change to title III should not be made lightly, without
full discussion of the issues and implications”).
CRS-13
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).15
Background. The Administration explained in its request for this section that,
“This provision clarifies that the collection of foreign intelligence information is
governed by foreign intelligence authorities rather than by criminal procedural
statutes, as the current statutory scheme envisions,” Hearing, at 54. The proposal
passed in haec verba from the Administration’s draft bill (§104), through the House
and Senate bills (§104 and §204 respectively), to the USA PATRIOT Act (§204).
What Does Not Expire. The authority under section 204 ends on December
31, 2005 except for investigations relating to offenses or potential offenses begun
or occurring before then. The provisions of section 204 have not been substantively
amended.
Considerations. Neither of the Justice Department reports mentions section
204. Neither the continuation nor the demise of section 204 seem likely to alter the
fact that the general trap and trace device and pen register proscriptions do not
preclude the exercise of authority to use trap and trace devices and pen registers to
gather foreign intelligence information.
Summary. - Makes clear that the general trap and trace device and pen register
prohibitions do not bar use of FISA authority to use trap and trace devices and pen
registers to gather foreign intelligence information.
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 unretrieved 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.
Background. Section 209 likewise passed in large measure unaltered from
Administration proposal to enactment. The proposal simply sought to treat voice
mail like e-mail:
This section enables law enforcement personnel to seize suspected
terrorists’ voice mail messages pursuant to a search warrant. At present, 18
U.S.C. §2510(1) anomalously defines “wire communication” to include “any
15 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.Rept. 107-307 at 55 (2001).
CRS-14
electronic storage of such communication,” meaning that the government must
apply for a Title III wiretap order before it can obtain unopened voice mail
messages held by a service provider. The section amends the definition of “wire
communication” so that it no longer includes stored communications. It also
amends 18 U.S.C. §2703 to specify that the government may use a search
warrant (instead of a wiretap order) to compel the production of unopened voice
mail, thus harmonizing the rules applicable to stored voice and non-voice (e.g.,
e-mail) communications. Hearing at 54; see also, H.Rept. 107-236, at 54.
What Does Not Expire. The authority under section 209 ends on December
31, 2005 except for investigations relating to offenses or potential offenses begun or
occurring before then. The provisions of section 209 have not been substantively
amended.
Considerations. The Justice Department cites the ease and speed with which
a warrant can be obtain as the principal virtue of section 209:
Investigations of terrorism and other crimes have also long been frustrated
by the failure of federal law to permit agents to gain access to voice-mail
messages with a search warrant. Prior to the USA PATRIOT Act, federal law
required officers to waste critical time and resources going through the
burdensome process of obtaining a wiretap order (rather than a search warrant)
to obtain unopened voice-mail. This was so despite the fact that authorities
could use a search warrant, for example, to obtain messages stored on the
suspect’s own answering machine. Section 209 of the USA PATRIOT Act has
modernized federal law by enabling investigators to access more quickly
suspects’ voice-mail by using a search warrant. The speed with which voice-mail
is seized and searched can often be critical to an investigation because stored
voice-mail is regularly deleted by service providers and thus lost forever.
Warrants pursuant to section 209 have been used to obtain key evidence in a
variety of criminal cases, including voice-mail messages left for those
participating in a large-scale ecstasy smuggling ring based in the Netherlands,
Report at 22.
The Justice Department also reports that “[s]ince passage of the act, such
warrants have been used in a variety of criminal cases to obtain key evidence,
including voice mail messages left for foreign and domestic terrorists,” Myths at
§209. And it points out that while the procedure under Title III is more demanding
and consequently slower and more burdensome, the warrant procedure necessarily
involves a finding of probable cause on evidence presented under oath and found by
a neutral magistrate, Id.
Critics might suggest that Congress could have supplied consistency of
treatment in a different manner. It might have concluded that an ongoing
conversation (i.e., one in which communications are being transmitted but have not
been received) should be accorded the same level of Title III protection whether it
involves a telephone conversation, a face to face conversation, an e-mail
conversation, or a voice mail conversation. As it now stands, a telephone
conversation is treated differently than an incomplete voice mail conversation. Here
and elsewhere, critics might also suggest that information on the utility of the new
authority seems somewhat general and fairly skeletal. Here and elsewhere, critics
might be concerned with the extent to which the enhancement of government
CRS-15
authority heralds a loss of personal privacy.16 The fact that Title III is only available
in connection with the investigation of certain serious crimes while a search warrant
is available in connection with any criminal investigation does not seem to be a
consideration of any substantial force to either critics or the Justice Department.
Summary. The section permits use of a search warrant to seize unopened
voice mail held by a service provider.
! Previous requirements of a wiretap order were slow, burdensome,
and not compatible with the manner in which unopened, provider-
stored e-mail was handled.
! Critics might suggest that compatibility might have been achieved
by expanding wiretap order requirements to cover unopened e-mail.
! Critics might question the section’s continued utility if no more
detailed and extensive evidence of successful use is available.
! Search warrants can be used to secure evidence of any crime; Title
III orders are limited to investigations involve serious predicate
offenses.
Section 212 (emergency disclosure of electronic surveillance).
Prior law confined the circumstances under which service providers might
disclose the particulars of their customers’ transaction records or communications
without a warrant, court order, or their customers’ consent, 18 U.S.C. 2702, 2703
(2000 ed.). Section 212 permitted communications service providers to disclose
either customer records or the content of their customers’ communications to
authorities in any emergency situation that involved an immediate danger of physical
injury, P.L. 107-56, §212(a)(1)(D), 115 Stat. 284-85 (2001). The content provision
has been repealed and replaced; the records provision has not, 18 U.S.C. 2702(b)(7),
(8), 2702(c)(4).
Background. Although with a only fleeting reference to cyber terrorism
offered as justification, the proposal for emergency provider disclosure came as part
of the original package, §110, H.R. --, Hearing, at 72.17 The House and Senate
16 Lee, The USA PATRIOT Act and Telecommunications: Privacy Under Attack, 29
RUTGERS COMPUTER & TECHNOLOGY LAW JOURNAL 371, 382 (2003)(“By eliminating the
burdensome process of obtaining a wiretap order, though, this provision ultimately
encourages more government searches. Even case law that required the government to apply
for a Title III warrant is now overturned”); Whitehead & Aden, at 1110 (“The Patriot Act
incorporates ‘wire communication’ into the definition of an ‘electronic communications
system,’ effectively permitting access to such messages via a standard search warrant, as if
a voice mail message were merely a documentary record. However, an individual’s
constitutionally recognized expectation of privacy in his or her message is not diminished
by the fact that the message is stored temporarily in a voice messaging system before being
retrieved by the recipient. Consequently, this provision of the Patriot Act is constitutionally
suspect under the Fourth Amendment”).
17 The Justice Department’s explanation ran as follows, “Existing law contains no
provisions that allow providers of electronic communications service to disclose the
communications (or records relating to such communications) of their customers or
CRS-16
proposals contained essentially the same provision, §110, H.R. 2975, H.Rept. 107-
236, at 6-7; §212, S. 1510, 147 Cong. Rec. S10311 (daily ed. Oct. 4, 2001).
What Does Not Expire. The Homeland Security Act repealed 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 said 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 freestanding emergency content disclosure provision
which replaced its section 212 predecessor remains in effect.
Considerations. The Justice Department cites several instances where the
authority of section 212 has been used. Although capsulized, its descriptions seem
to speak of providers supplying record, rather than content, information:
The cooperation of third parties in criminal or terrorist investigations is
often crucial to a positive outcome. Third parties, such as telecommunications
companies, often can assist law enforcement by providing information in
emergency situations. Previous federal law, however, did not expressly allow
telecommunications companies to disclose customer records or communications
in emergencies. Even if a provider believed that it faced an emergency situation
in which lives were at risk, if the provider turned over customer information to
the government, it risked, in some circumstances, being sued for money damages.
Congress remedied this problem in section 212 of the USA PATRIOT Act by
allowing electronic communications service providers to disclose records to the
government in situations involving an immediate danger of death or serious
physical injury to any person. Section 212 has already amply proved its utility.
Examples:
! Section 212 was used in the investigation of a bomb threat against
a school. An anonymous person, claiming to be a student at a high
school, posted on the Internet a disturbing death threat ... The
operator of the Internet site initially resisted disclosuring to law
enforcement any information... Once a prosecutor explained that the
subscribers in emergencies that threaten death or serious bodily injury. This section amends
18 U.S.C. §2702 to authorize such disclosures if the provider reasonably believes that an
emergency involving immediate danger of death or serious physical injury to any person
requires disclosure of the information without delay.
“Current law also contains an odd disconnect: a provider may disclose the contents
of the customer's communications in order to protect its rights or property but the current
statute does not expressly permit a provider to voluntarily disclose non-content records
(such as a subscriber's login records). 18 U.S.C. 2702(b)(5). This problem substantially
hinders the ability of providers to protect themselves from cyber-terrorists and criminals.
Yet the right to disclose the contents of communications necessarily implies the less
intrusive ability to disclose non-content records. In order to promote the protection of our
nation's critical infrastructures, this section's amendments allow communications providers
to voluntarily disclose both content and non-content records to protect their computer
systems.”
CRS-17
USA PATRIOT Act created a new provision allowing for voluntary
release of information in emergencies, the owner turned over
evidence that led to the timely identification of the individual
responsible for the bomb threat....
! Section 212 was recently used to apprehend quickly an individual
threatening to destroy a Texas mosque before he could carry out his
threat....
! Section 212 was invaluable in swiftly resolving a cyber-terrorist
[extortion] threat to the South Pole Research Station... The hacked
computer also controlled the life support systems for the South Pole
station that housed 50 scientists “wintering over” during the South
Pole’s most dangerous season....
! Section 212 has further proven to be extremely useful in cases
involving abducted or missing children. The provision, for instance,
was instrumental in quickly rescuing a 13-year-old girl from
Western Pennsylvania who had been lured from her home and was
being held captive by a 38-year-old man she had met online....
Report at 26-7; see also, Myths at §212.
None of the examples seem to involve a victim alerting unsuspecting authorities
of an intrusion, as the section appears to contemplate; each seems to relate to a case
where authorities were aware of the intrusion and the information might have been
effectively secured through the use of a search warrant, 18 U.S.C. 2703(c). None of
the examples appear to relate to the rationale offered for the proposal’s passage –
“protection of our nation’s critical infrastructure.”
Summary. Section 212 authorizes service providers in emergency situations
to disclose customer communications record information and the content of stored
customer communications.
! Subsequent legislation made the content disclosure but not the
record disclosure authority permanent, P.L. 107-296, 116 Stat. 2157
(2002)(18 U.S.C. 2702(b)(7)).
! The record disclosure feature has proven useful in several life-
threatening situations.
! The same benefits might be available after sunset through the use of
a search warrant.
! There are apparently no reported instances of the section’s use for its
intended purposes, protection of the nation’s critical infrastructure.
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, the consent of one of the participants in the conversation, or a
communications carrier’s protection of its property, 18 U.S.C. 2511. Computer
service providers occasionally discover that trespassers have established electronic
CRS-18
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).
Background. Section 217 reflects the Administration’s original request with
two exceptions, compare, §106, H.R. --, Hearings at 71, with, §217, 115 Stat. 290-91
(2001). Section 217 excludes from the definition of “computer trespasser,” those with
contractual access to the computer system in question (notwithstanding the fact they
may be exceed their authorization), 18 U.S.C. 2510(21)(B); and limits permissible
interceptions to the trespasser’s communications within the invaded computer
system, 18 U.S.C. 2511(2)(i). The first exception originated in §217 of S. 1510, as
passed by the Senate, 147 Cong. Rec. S10609 (daily ed. Oct. 11, 2001). The second
initially appeared in §217 of H.R. 2975, as passed by the House, 147 Cong. Rec.
H6744-745 (daily ed. Oct. 12, 2001).18
Speaking of the basic proposal, the Administration had stated that:
Current law may not allow victims of computer trespassing to request law
enforcement assistance in monitoring unauthorized attacks as they occur.
Because service providers often lack the expertise, equipment, or financial
resources required to monitor attacks themselves as permitted under current law,
they often have no way to exercise their rights to protect themselves from
unauthorized attackers. Moreover, such attackers can target critical
infrastructures and engage in cyber terrorism. To correct this problem, and help
to protect national security, the proposed amendments to the wiretap statute
would allow victims of computer attacks to authorize persons “acting under color
of law” to monitor trespassers on their computer systems in a narrow class of
cases. §106, H.R. --, Hearings at 55.
What Does Not Expire. 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. On the other hand, in such cases the initial crime of intrusion
will have occurred prior sunset, a fact that would seem to permit post-sunset exercise
of the section’s authority.
The House Judiciary Committee had recommended expansion of the good faith
defense to civil liability for computer system operators who sought to take advantage
of section 217, §105(3), H.R. 2975, H.Rept. 107-236, at 5, 56 (2001). The
recommendation was not included in the act, §217, P.L. 107-56, 115 Stat. 291
18 Neither exception appeared in H.R. 2975 as reported by the House Judiciary Committee,
§105, H.R. 2975, H.Rept. 107-236, at 5 (2001).
CRS-19
(2001). The Homeland Security Act, however, added it as a permanent amendment
to 18 U.S.C. 2520(d)(3), §225(e), P.L. 107-296, 116 Stat. 2157 (2002).19
Considerations. The Justice Department’s post-enactment comments
relating to section 217 tend to describe its reach rather than its use:
The USA PATRIOT Act also empowered Internet service providers and
others to enlist the help of law enforcement to monitor the activities of hackers
who unlawfully access their computer networks. Section 217 of the act allows
victims of computer attacks by cyber-terrorists and others to ask law enforcement
officers to monitor trespassers on their systems. Section 217 thus places cyber-
intruders on the same footing as physical intruders: hacking victims can seek
law-enforcement assistance to combat hackers just as burglary victims can invite
police officers into their homes to catch burglars. Report at 28.
The Department’s comments in Myths are more expansive and do include a
general statement of use:
The law has always recognized the right of landowners to ask law
enforcement to help expel people who illegally trespass on their property.
Section 217 made the law technology-neutral, placing cyber-intruders on the
same footing as physical intruders. Now, hacking victims can seek law-
enforcement assistance to combat hackers, just as burglary victims have been
able to invite officers into their homes to catch burglars. Prior to the enactment
of the USA PATRIOT Act, the law prohibited computer service providers from
sharing with law enforcement that hackers had broken into their systems.
Computer operators are not required to involve law enforcement if they detect
trespassers on their systems. Section 217 simply gives them the option of doing
so. Section 217 preserves the privacy of law-abiding computer users. Officers
cannot agree to help a computer owner unless (1) they are engaged in a lawful
investigation; (2) there is reason to believe that the communications will be
relevant to that investigation; and (3) their activities will not acquire the
communications of non-hackers. This provision has played a key role in a
number of terrorist investigations, national-security cases, and investigations of
other serious crimes. Section 217 is extremely helpful when computer hackers
launch massive denial of service attacks - which are designed to shut down
individual websites, computer networks, or even the entire Internet. The
definition of computer trespasser does not include an individual who has a
contractual relationship with the service provider. Thus, for example, America
Online could not ask law enforcement to help monitor a hacking attack on its
system that was initiated by one of its own subscribers. Myths, at §217 (emphasis
added).
The section’s solution does not seem to match the statement of the problem it
was purportedly designed to address. It does not remove intruders or prevent their
entry; it merely permits eavesdropping on them while they are trespassing. There is
no clear explanation by word or example of why this is preferable or effective. The
Department indicated during oversight hearings that authority under the section had
19 18 U.S.C. 2520(d)(3)(“A good faith reliance on ... (3) a good faith determination that
section ... 2511(2)(i) of this title permitted the conduct complained of; is a complete defense
against any civil or criminal action brought under this chapter or any other law”).
CRS-20
been use “comparatively rarely.”20 Some critics have expressed the concern that the
provision might be used to circumvent the safeguards and oversight that attends Title
III wiretaps.21
Summary. Section 217 permits federal authorities to intercept an intruder’s
communications within an invaded computer system.
! It requires consent of the system operator, a law enforcement
investigation, a reasonable belief that the communications are
relevant to the investigation, and limits interception to the intruder’s
communications.
! Statements of support have leaned heavily on descriptions of the
authority rather than examples of its use.
! The Justice Department has stated that the authority has been used
“comparatively rarely.”
! The solution does not seem to match the problem. Section 217 does
not authorize removal of computer hackers bent on denial of service
attacks nor does it prevent or punish trespassers; instead it
eavesdrops on their communications.
20 Oversight Hearing of the Department of Justice: Hearing Before the Senate Comm. on
the Judiciary, 107th Cong., 2d Sess. at (2002), quoted in Howell, Seven Weeks: The Making
of the USA PATRIOT Act, 72 GEORGE WASHINGTON LAW REVIEW 1145, 1203 (2004).
21 National Security at What Price?: A Look into Civil Liberty Concerns in the Information
Age under the USA PATRIOT Act of 2001 and a Proposed Constitutional Test for Future
Legislation, 12 CORNELL JOURNAL OF LAW AND PUBLIC POLICY 447, 460-61 (2003)(“In
addition to allowing broad discretion and authorization for both ISPs and computer owners
and operators, the USA PATRIOT Act, removes most judicial oversight of this particular
task. In situations that do not result in prosecution, the computer users whose activities are
targeted are likely never to discover the monitoring, and therefore they would be effectively
unable to challenge the provision in court. Furthermore, law enforcement could unduly
pressure owners and operators of computers to obtain permission for the interception and
to circumvent the safeguards built into the PATRIOT Act”); EPIC Report (“The new
exception [under section 217] has broad implications, given that a ‘protected computer’
includes any ‘which is used in interstate or foreign commerce or communications’ (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-interception laws that require objective oversight from
someone outside the investigative chain. The new law places the determination solely in the
hands of law enforcement and the system owner or operator. In those likely instances in
which the interception does not result in prosecution, the target of the interception will never
have an opportunity to challenge the activity (through a suppression proceeding). Indeed
such target would never even have notice of the fact that their communications were subject
to warrantless interception.... [T]he amendment has little, if anything, to do with legitimate
investigations of terrorism”).
CRS-21
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.). Federal authorities found
this inconvenient and sometimes frustrating where the criminal investigation was
conducted in one district and the communications provider was located in another,
H.Rept. 107-236, at 57.
Section 220 addresses the difficulty by authorizing the court in the district where
the crime occurred to issue search warrants or orders 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.
Background. But for the addition of a technical conforming amendment,
section 220 passed untouched through the legislative process from request to
presidential signature.22 The justification for the proposals was rather
straightforward:
Current law requires the government to use a search warrant to compel a
provider to disclose unopened e-mail. 18 U.S.C. §2703(a). Because Federal Rule
of Criminal Procedure 41 requires that the “property” to be obtained “be within
the district” of the issuing court, however, the rule may not allow the issuance of
§2703(a) warrants for e-mail located in other districts. Thus, for example, where
an investigator in Boston is seeking electronic e-mail in the Yahoo! account of
a suspected terrorist, he may need to coordinate with agents, prosecutors, and
judges in the Northern District of California, none of whom have any other
involvement in the investigation. This electronic communications information
can be critical in establishing relationships, motives, means, and plans of
terrorists. Moreover, it is equally relevant to cyber-incidents in which a terrorist
motive has not (but may well be) identified. Finally, even cases that require the
quickest response (kidnaping, threats, or other dangers to public safety or the
economy) may rest on evidence gathered under §2703(a). To further public
safety, this section accordingly authorizes courts with jurisdiction over
investigations to compel evidence directly, without requiring the intervention of
their counterparts in other districts where major Internet service providers are
located. §108, H.R. --, Hearings, at 55.
What Does Not Expire. The authority under section 220 terminates on
December 31, 2005 except with respect to earlier crimes or potential crimes. Section
219, however, appears to mitigate the impact of section 220’s expiration in certain
22 Compare, §108, H.R. --, Hearings at 72, with, §220, P.L. 107-56, 115 Stat. 291-92
(2001); see also, §108, H.R. 2975, H.Rept. 107-236, at 5-6; §220, S. 1510, 147 Cong. Rec.
S10610 (daily ed. Oct. 11, 2001).
CRS-22
terrorism cases. Section 219 is not subject to the sunset provision. It provides for
at least nation-wide, and perhaps world-wide, service of federal search and arrest
warrants in cases of international or domestic terrorism as defined in 18 U.S.C.
2331.23
Considerations. The Justice Department asserts that section 220 has proven
beneficial in a number of criminal cases, some involving charges of terrorism.
In section 220 ... Congress adapted federal law to changing technology by
allowing courts to order the release of stored communications through a search
warrant valid in another specified judicial district. The enhanced ability to
obtain this information efficiently has proved invaluable in several terrorism
investigations, such as the Virginia Jihad24 and the “shoebomber”25 cases ... as
well as time-sensitive criminal investigations, such as [one] involving a
dangerous fugitive26.... In addition to allowing law enforcement to gain access
to information quickly in time-sensitive investigations, Congress also
significantly improved the Justice Department’s ability to mount large-scale child
23 “[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).
24 Several Northern Virginia residents were convicted or pleaded guilty to terrorism-related
charges including paramilitary “paintball” training, United States v. Khan, 309 F.Supp.2d
789 (E.D.Va. 2004); Department of Justice Press Release, dated April 9, 2004).
25 Richard Reid, a British citizen, pleaded to eight terrorism-related charges arising out of
his efforts to ignite explosives concealed in his shoes while on board an American Airlines
flight from Paris to Miami, United States v. Reid, 369 F.3d 619 (1st Cir. 2004). A second
British resident was later indicted as Reid’s accomplice, Department of Justice Press
Release, dated Oct. 4, 2004. All the misconduct here seems to involve the overseas
activities of foreign nationals; it is unclear how access to the customer records of
communications service providers in this country could have been helpful.
26 The Report refers to the case of an interstate fugitive charged with abduction and sexual
assault of his estranged wife, tracked down through his Internet use, and ultimately
convicted on state charges.
CRS-23
pornography investigations by including section 220 in the USA PATRIOT Act.
The ability to obtain search warrants in the jurisdiction of a child pornography
investigation rather than in the jurisdiction of the Internet service provider is
critical to the success of a complex, multi-jurisdictional child pornography
case.... Section 220 has also dramatically reduced the administrative burdens in
judicial districts that are home to large Internet service providers. Report at 20-1.
Critics might suggest that the principal objection to section 220 is that it makes
it expensive and inconvenient for service providers to contest or request modification
of orders directed to them from district courts throughout the country.27 For the
Justice Department with United States Attorneys Offices throughout the country, by
way of contrast, the burden is simply a matter of resource allocation, it might be
argued. Some may feel that the section allows the Justice Department to forum shop
should the federal courts in the home districts of large providers prove sympathetic
to the burdens such orders impose upon the providers. They might also contend that
expiration arrives with little loss in terrorism cases since section 219 of the act which
does not expire allows for nation-wide service of search warrants in terrorism cases.
Summary. Section 220 authorizes nation-wide execution of search warrants
and court orders for customer communications records and the content of stored
customer communications.
! A search warrant must ordinarily be executed in the judicial district
in which it is issued except in terrorism cases.
! The Justice Department asserts that the authority has proven useful
in serious terrorism and other criminal cases.
! The section makes it more difficult for large communications service
providers to seek modification of burdensome disclosure orders;
instead of being able to contest a warrant or order within their home
federal district they must challenge in whatever district throughout
the country the warrant or order originated.
! Section 219 which does not expire permits nation-wide service of
search warrants in terrorism cases.
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.
27 See, 18 U.S.C. 2703(e)(“... A court issuing an order pursuant to this section [for the
content or records held by communications providers], on a motion made promptly by the
service provider, may quash or modify such order, if the information or records requested
are usually voluminous in nature or compliance with such order otherwise would cause
undue burden on such provider”).
CRS-24
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.28
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
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.
Background. Section 223 was not among those requested by the
Administration, H.R. --, Hearings, at 67-90. Nor does it appear in S. 1510 as passed
by the Senate, 147 Cong. Rec. S10604-630 (daily ed. Oct. 11, 2001). It comes
instead from the House Committee on the Judiciary where it was added to H.R. 2975
as §161, H.Rept. 107-236, at 10-13, 305-13. As the section’s sponsor explained:
So what the amendment does is as follows: First, it says that wherever we
gather information, whether it is pen register, trace and trap or wiretap or
whatever, wiretap under one statute, wiretap under FISA, if information gained
during the surveillance is inappropriately released, if it winds up on the White
House desk and somebody leaks it, if J. Edgar Hoover tells bad stories about you,
then you have a right to go in under the Federal Tort Claims Act as the aggrieved
party and sue.... It also then says that if someone goes in and wins the lawsuit
against the government because surveilled information has been inappropriately
leaked, the head of that bureau or agency either must initiate disciplinary
proceedings against the leaker or explain in writing ... that wasn’t done. H.Rept.
107-236, at 311 (remarks of Representative Frank).
What Does Not Expire. 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.
28 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).
CRS-25
Under some circumstances the demise of a cause of action deprives the courts
of subject matter jurisdiction. Longstanding 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.”29
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.30
Considerations. The Justice Department reports that “[t]here have been no
administrative disciplinary proceedings or civil actions initiated under section 223
of the act for unauthorized disclosure of intercepts,” Myths at §223. Critics of the
section might argue that the prospect of disciplinary action might serve as a
disincentive to information sharing.
Summary. Section 223 creates a cause of action against the United States for
official willful violations of Title III or FISA, 18 U.S.C. 2712; amends individual
civil liability provisions of Title III for official unlawful disclosure or use, 18 U.S.C.
2520(g), 2707(g); confirms disciplinary authority of agencies officials over violations
of the Title III or FISA, 18 U.S.C. 2520(f), 2707(d).
! There have been no disciplinary proceedings initiated or civil actions
filed under section 223.
! Section 223 might serve as a disincentive to information sharing.
Temporary Foreign Intelligence Sections
Federal law affords foreign intelligence officials authority comparable to that
enjoyed by law enforcement officials in some respects. There is a rough
comparability between surveillance (wiretap) authority under the FISA and under
29 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).
30 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).
CRS-26
Title III, compare, 50 U.S.C. 1801-1811, with, 18 U.S.C. 2510-2522; there is a rough
comparability between FISA physical search authority and search warrant authority
in a law enforcement context, compare, 50 U.S.C. 1821-1829, with, F.R.Crim.P. 41;
and there is a rough comparability between FISA trap and trace or pen register orders
and their law enforcement counterparts, compare, 18 U.S.C. 3121-3127, with, 50
U.S.C. 1841-1846. There are, however, significant differences.
One of the most perplexing aspects of the law in the post-9/11 universe is the
relationship of the statutory procedures and prohibitions governing wiretap and
related investigative tools in the criminal law enforcement world (Title III et al.) to
those in the foreign intelligence world (FISA). Title III and its auxiliaries are focused
on crime (probable cause to believe that predicate offense has, is or will occur;
relevancy to a criminal investigation) whether the offender is an American or not;
FISA is focused on foreign powers and the agents of foreign powers (probable cause
to believe that the target is a foreign power or an officer, employee, spy, saboteur, or
terrorist acting on behalf of a foreign power) whether criminal activity is involved or
not. The difficulty flows from the fact that an international terrorist may
appropriately be the target of a order under Title III et al., or FISA, or both.
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. 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.”31 The law
enforcement wiretap statute has a similar provision for law enforcement orders, 18
U.S.C. 2518(4).
Background. The Administration’s original request observed that:
This provision expands the obligations of third parties to furnish assistance
to the government under FISA. Under current FISA provisions, the government
can seek information and assistance from common carriers, landlords, custodians
and other persons specified in court-ordered surveillance. Section 152 would
amend FISA to expand existing authority to allow, “in circumstances where the
Court finds that the actions of the target of the application may have the effect
of thwarting the identification of a specified person” that a common carrier,
landlord, custodian or other persons not specified in the Court's order be required
to furnish the applicant information and technical assistance necessary to
accomplish electronic surveillance in a manner that will protect its secrecy and
produce a minimum of interference with the services that such person is
providing to the target of electronic surveillance. This would enhance the FBI's
31 Administration’s Draft Anti-Terrorism Act of 2001: Hearing Before the House Comm.
on the Judiciary, 107th Cong., 1st Sess. 56 (2001); H.Rept. 107-307 at 60.
CRS-27
ability to monitor international terrorists and intelligence officers who are trained
to thwart surveillance by rapidly changing hotel accommodations, cell phones,
Internet accounts, etc., just prior to important meetings or communications.
Under the current law, the government would have to return to the FISA Court
for an order that named the new carrier, landlord, etc., before effecting
surveillance. Under the proposed amendment, the FBI could simply present the
newly discovered carrier, landlord, custodian or other person with a generic order
issued by the Court and could then effect FISA coverage as soon as technically
feasible. §152, H.R. --, Hearings at 56.
The proposal passed through the legislative process unchanged, see, §152, H.R.
2975, H.Rept. 107-236 at 8, 59-60; §206, S. 1510, 147 Cong. Rec. S10607 (daily ed.
Oct. 11, 2001).
What Does Not Expire. 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. A
subsequent amendment (which does not sunset) to a different FISA section, however,
permits roving surveillance by requiring a FISA order to identify the location and
facilities subject to surveillance only if they are known at the time of the application,
P.L. 107-108, 115 Stat. 1402 (2001)(50 U.S.C. 1805(c)(1)(B)).
Considerations. The Justice Department’s Report describes section 206 and
offers a hypothetical by way of justification:
Since 1986, law enforcement officials have been able to obtain multiple-
point wiretaps to keep pace with drug dealers and mobsters who, for example,
frequently switch cell phones to evade surveillance. Prior to enactment of the
USA PATRIOT Act, such authority was not available under FISA for cases
involving terrorists. Section 206 of the act, however, now permits officers in
international terrorism investigations to obtain a court order that applies to the
suspect, rather than a particular phone or phone company. This new authority
has put investigators in a better position to avoid unnecessary cat-and-mouse
games with terrorists, who are trained to thwart surveillance. While particular
examples of the use of multiple-point wiretaps pursuant to section 206 remain
classified, the following hypothetical illustrates the utility of this authority.
Suppose, for example, the investigators become aware of an al Qaeda plot
to launch a bomb attack. Investigators also discover a recent cellular telephone
number for the suspected bomber, for which they immediately obtain a FISA
surveillance order. When they attempt to begin surveillance of the suspect,
however, they discover that he has changed cellular telephone numbers and
providers in order to thwart surveillance. Because of section 206, in cases where
the subject’s actions may have the effect of thwarting the identification of a
service provider, investigators can now obtain a FISA multiple-point surveillance
order and immediately serve it on the suspected bomber’s new cellular provider,
allowing undercover agents to monitor his new cellular telephone number
immediately. Without section 206, however, investigators in such cases would
be forced to waste valuable time returning to the FISA court just to obtain a new
order containing the new provider’s name. Report at 22-3.
CRS-28
Critics claim section 206 is too sweeping;32 places unfair burdens upon those
called upon to provide assistance;33 and might raise constitutional concerns.34
32 Chemerinsky, Losing Liberties: Applying a Foreign Intelligence Model to Domestic Law
Enforcement, 51 UCLA LAW REVIEW 1619, 1627-628 (2004)(“Section 206 authorizes the
FISA court to authorize intercepts on any phones or computers that the target may use. This
authority for roving wiretaps means that the police no longer need to list the phone numbers
to be tapped; the police can listen to any phone that person might use. This means that the
police can listen to all phones where a person works, or shops, or visits. In debates with FBI
agents over this provision, they have stated that this even allows the tapping of pay phones
that a person regularly walks past. There is, though, a requirement for "minimization" in
that agents must stop listening when they learn that the conversation is not pertinent to the
subject of their warrant. The argument for roving wiretaps is that suspected terrorists might
repeatedly change cell phones. The problem with this argument is that the government, by
definition, cannot listen to a phone until they know that it exists. Once they know, they
could just add the new number to an existing warrant. In debates with FBI agents, the
response always has been that it takes too long to add new number to existing warrants. But
this calls for a faster procedure to do so, not roving wiretaps”); Lee, The USA PATRIOT Act
and Telecommunications: Privacy Under Attack, 29 RUTGERS COMPUTER & TECHNOLOGY
LAW JOURNAL 371, 398 (2003)(“Until this provision sunsets in 2005, the result may be a
back door to massive wiretapping); The USA PATRIOT Act: Violating Reasonable
Expectations of Privacy Protected by the Fourth Amendment Without Advancing National
Security, 82 NORTH CAROLINA AW REVIEW 412, 421 (2003)(“Section 206 gives the federal
government excessively broad authority to intrude on the privacy of third parties other than
the target of the surveillance”); EPIC Report (“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”).
33 Whitehead & Aden, at 1105 (“This provision is problematic in that it distorts two
extremely important checks in the legal system that historically have provided a measure of
accountability for the validity of a warrant. First, the amendment allows the issuance of so-
called ‘blank warrant,’ which the parties require to respond to the order need not be listed
on the face of the document. This places such communications providers in the position of
having to accept the validity of the warrant and its application to them virtually without
question (although the section does permit a provider to inquire with the Attorney General
as to who, through his various agents, obtained the order in the first place, whether or not
the order is valid). Second the order may not have been issued in the responding party’s
jurisdiction, creating hindrances of geography and expense for a party that desires to
challenge the order in court”).
34 Kollar, USA PATRIOT Act, the Fourth Amendment, and Paranoia: Can They Read This
While I'm Typing It? 3 JOURNAL OF HIGH TECHNOLOGY LAW 67 (2004)(“Even more
striking, Section 206 provides authority for the FISC to grant so-called ‘roving wiretaps’ not
specific to a particular jurisdiction, telephone number or email address but which can cross
jurisdictional boundaries. This wide latitude effectively permits the surveillance of much
otherwise lawful activity, giving rise to Constitutional concerns of overbreadth and
vagueness”); Hannigan, Playing Patriot Games: National Security Challenges Civil
Liberties, 41 HOUSTON LAW REVIEW 1371, 1382 (2004)(“The Fourth Amendment of the
Constitution protects Americans from unreasonable searches and seizures. However,
several provisions of the Patriot Act authorize federal law enforcement to skirt the line of
CRS-29
Summary. Section 206 permits roving FISA surveillance orders; orders need
not specifically identify individuals ordered to assist where targets take actions to
thwart specific individuals, 50 U.S.C. 1805(c)(2)(B).
! Comparable authority has existed under Title III (18 U.S.C. 2518(4))
for some time.
! Critics claim the provision is too sweeping, perhaps constitutionally
so.
! A subsequent amendment (which does not sunset) permits roving
surveillance by requiring a FISA order to identify the location and
facilities subject to surveillance only if they are known, P.L. 107-
108, 115 Stat. 1402 (2001)(50 U.S.C. 1805(c)(1)(B)).
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 one 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 one 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 one year, 50 U.S.C. 1824(d).
Background. As is often and understandably the case where FISA is the
subject, the Administration’s statement accompanying its request here is a bit cryptic:
This section reforms a critical aspect of the Foreign Intelligence
Surveillance Act (FISA). It will enable the Foreign Intelligence Surveillance
Court (FISC), which presides over applications made by the U.S. government
under FISA, to authorize the search and surveillance in the U.S. of officers and
employees of foreign powers and foreign members of international terrorist
groups for up to a year. Currently, the FISC may only authorize such searches
and surveillance for up to 45 days and 90 days, respectively. The proposed
change would bring the authorization period in line with that allowed for search
and surveillance of the foreign establishments for which the foreign officers and
employees work. The proposed change would have no effect on electronic
surveillance of U.S. citizens or permanent resident aliens. §151, H.R. --,
Hearings at 51; see also, H.Rept. 107-236 at 59.
reasonableness. For example, section 206 of the Patriot Act amends FISA and eases
restrictions involving domestic intelligence gathering by allowing a single wiretap to legally
roam from device to device, to tap the person rather than the phone”); EPIC Report (“The
‘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 where the private
communications of law-abiding American citizens might be intercepted”).
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The Senate scaled back the Administration’s request to extend the duration of
orders and extensions relating to foreign agents from one year to 120 days, but with
extensions for up to one year in the case of agents who are foreign nationals (not U.S.
persons), §207, S. 1510, 147 Cong. Rec. S10607 (daily ed. Oct. 11, 2001).35 The
Senate view ultimately prevailed, §207, P.L. 107-56, 115 Stat. 282 (2001).
What Does Not Expire. 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.
Considerations. The Justice Department apparently views section 207 as a
matter of expediency and administrative efficiency:
The USA PATRIOT Act has also improved the effectiveness of FISA.
Under FISA, a federal court ... reviews Department requests for physical searches
and electronic surveillance of foreign powers and their agents. Under prior law,
the Department could only conduct FISA searches of agents of foreign powers
for periods lasting up to 45 days prior to having to seek renewal of such authority
from the court. That limitation required federal authorities to waste valuable
time and resources by frequently renewing court orders, even when there was no
question about the legal sufficiency of a particular case. Section 207 of the USA
PATRIOT Act now permits the FISC to authorize physical searches of certain
agents of foreign powers (including U.S. persons) for 90 days, and authorizes
longer periods of searches and electronic surveillance for certain categories of
foreign powers and non-U.S. persons who are agents of foreign powers. In
particular for foreign governments and other foreign powers, non-U.S. person
officers or employees of certain foreign powers, and non-U.S. person members
of international terrorist groups, initial orders authorizing searches and
surveillance may be for periods of 120 days, and renewal orders may extend for
periods of one year. While the details of FISA operations are classified, the
FISC has authorized 90-day and year-long surveillance of foreign powers and
their agents pursuant to section 207 of the USA PATRIOT Act. Therefore, the
act has not only provided additional time to government investigators targeting
potential terrorist activity, it has also helped the government and the FISC to
focus their efforts on more significant and complicated terrorism-related cases.
Report at 17.
This section essentially deals with the regularity of judicial supervision. Critics
might argue more not less supervision is appropriate given the increased use of
35 See, 147 Cong. Rec. S10557 (daily ed. Oct. 11, 2001)(remarks of Sen. Leahy)(“The
Administration proposed that the period of electronic surveillance be changed from 90 days
to one year in these cases. This proposal did not ensure adequate review after the initial
stage to ensure that the probable cause determination remained justified over time”).
CRS-31
FISA36 and of the FISA court’s remarkably outspoken criticism of the accuracy,
candor and sufficiency of presentations to the court.37
Summary. Section 207 extends the permissible duration of FISA surveillance
and physical search orders and extensions, 50 U.S.C. 1805(e), 1824(d).
! The Justice Department sees section 207 as a time saver that allows
for more productive allocation of Department and judicial resources.
! Critics might argue more not less judicial supervision is called for.
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 for telephone communications in order to acquire information
relevant to a foreign intelligence or international terrorism investigation and upon the
additional certification that the communications monitored would likely 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).
36 The FBI reported an 85% increase in FISA applications from 2001 to 2003, The FBI’s
Counterterrorism Program Since September 2001: Report to the National Commission on
Terrorist Attacks upon the United States, 64 (April 14, 2004). Annual reports to Congress
on the number of FISA surveillance and physical search applications, beginning with
calendar year 1995, appear on the Department of Justice’s website, available on Feb. 11,
2005 at [http://www.usdoj.gov/ag/readingroom/ag_foia1.htm].
37 In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218
F.Supp.2d 611, 620-21 (FISC 2002)(“In September 2000, the government came forward to
confess error in some 75 FISA applications related to major terrorist attacks directed against
the United States. The errors related to misstatements and omissions of material facts....
In November of 2000, the Court held a special meeting to consider the troubling number of
inaccurate FBI affidavits in so many FISA applications. After receiving a more detailed
explanation from the Department of Justice about what went wrong, but not why, the Court
decided not to accept inaccurate affidavits from FBI agents whether or not intentionally
false. One FBI agent was barred from appearing before the Court as a FISA affiant ... In
March of 2001, the government reported similar misstatements in another series of FISA
applications....”).
CRS-32
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).
Background. The Administration’s original request sought to make pen
register and trap and trace device procedures more compatible:
When added to FISA two years ago, the pen register/trap and trace section
was intended to mirror the criminal pen/trap authority defined in 18 U.S.C.
§3123. The FISA authority differs from the criminal authority in that it requires,
in addition to a showing of relevance, an additional factual showing that the
communications device has been used to contact an “agent of a foreign power”
engaged in international terrorism or clandestine intelligence activities. This has
the effect of making the FISA pen/trap authority much more difficult to obtain.
In fact, the process of obtaining FISA pen/trap authority is only slightly less
burdensome than the process for obtaining full electronic surveillance authority
under FISA. This stands in stark contrast to the criminal pen/trap authority,
which can be obtained quickly from a local court, on the basis of a certification
that the information to be obtained is relevant to an ongoing investigation. The
amendment simply eliminates the “agent of a foreign power” prong from the
predication, and thus makes the FISA authority more closely track the criminal
authority. §155, H.R. --, Hearings at 57; see also, §155, H.R. 2975, H.Rept. 107-
236 at 61.
The Senate added the instruction that denies pen register/trap and trace device
authority in the case of an investigation predicated entirely upon its target’s exercise
of first amendment rights, §214, S. 1510, 147 Cong. Rec. S10608 (daily ed. Oct. 11,
2001).
What Does Not Expire. 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.
Considerations. The streamlined authority apparently has been used in the
investigation of suspected al Qaeda agents in this country:
The USA PATRIOT Act also has updated federal pen-trap law under FISA
by making the legal requirements for obtaining court permission for pen/trap
orders in international terrorism investigations more similar to the standards that
apply in ordinary criminal cases. Previously, FISA-authorized pen/trap orders
were available in terrorism investigations only if the suspect was, or was
communicating with an “agent of a foreign power.” FISA thus prevented
officials from using pen/trap devices in many settings that might have revealed
information relevant to a foreign intelligence investigation. Under section 214
of the act, however, the government now can obtain a pen/trap order when the
information likely to be obtained is foreign intelligence information or is relevant
to investigations intended to protect against international terrorism or
“clandestine intelligence activities.” While specific examples of the use of
pen/trap devices pursuant to section 214 remain classified, the Department has
utilized section 214 on several occasions in international terrorism investigations,
including investigations of suspected al Qaeda operatives in the United States,
and the streamlined pen/trap authority has made it easier to identify additional
subjects in terrorism investigations. Report, at 25-6.
CRS-33
Critics might argue that streamlining the FISA pen register/trap and trace device
procedure is particularly ill-advised. First, the procedure is already subject to a
minimum of judicial supervision; orders are issued upon the FBI’s certification of
relevance not upon the court’s finding of relevance;38 unlike wiretap orders, there is
no requirement that the targets of the order be notified after the order expires unless
the results are to be used as evidence in official proceedings;39 unlike comparable
orders in the criminal sphere, there is no requirement of a subsequent report to the
court of the particulars of execution;40 criminal orders call for judicial re-examination
every 60 days, FISA orders every 90 days.41 Second, the nature and extent of the
expanded authority is substantial. Where orders once permitted authorities to
monitor the identification of parties to telephone conversations over particular
instruments, they now permit authorities to monitor Internet use.42 Third, in terrorism
cases officials presumable enjoy adequate law enforcement authority under section
216 of the act which does not expire. Some critics find the section disquieting for
constitutional reasons.43
38 50 U.S.C. 1842.
39 Compare, 50 U.S.C. 1845, with, 18 U.S.C. 2517(8)(d).
40 Compare, 50 U.S.C. 1842, with, 18 U.S.C. 3123(a)(3).
41 Compare, 50 U.S.C. 1842(e), with, 18 U.S.C. 3123(c).
42 Whitehead & Aden, at 1106 (“These expanded powers to monitor telecommunications
[in sections 214 and 216] are particularly prone to abuse in the Internet age, since pen
register and trap and trace orders now disclose not only standard telephone numbers called
by or dialing in to a subject, but also Internet URLs and dedicated lines for data
transmission. The ability to monitor Internet sites visited by the subject to a search, in the
absence of a showing probable cause or even reasonable suspicion, is an unprecedented
expansion of federal surveillance powers”); National Security at What Price?: A Look into
Civil Liberty Concerns in the Information Age under the USA PATRIOT Act of 2001 and a
Proposed Constitutional Test for Future Legislation, 12 CORNELL JOURNAL OF LAW AND
PUBLIC POLICY 447, 460 (2003)(“The effect of pen registers on personal rights is that pen
registers can capture a great deal more information than merely a telephone number. Not
requiring probable cause for these devices rested on judicial reasoning that neither the trap
and trace nor the pen register devices, could, prior to the USA PATRIOT Act capture the
substantive material of the communication in question. the USA PATRIOT Act’s expansion
of and consolidation of the definitions of pen registers and trap and trace devices endanger
the original distinction upon which the lower level of scrutiny was justified. The expanded
definition would now seem to cover Web surfing, e-mail messages, electronic fax
distributions, and any other electronic form of communication. The FBI justifies these
definitional expansions by interpreting Web traffic as substantially similar to telephone
conversations. Despite the substantial differences, including the vast amount of information
available from an e-mail routing protocol that cannot be gleaned from listening to a phone
conversation, this issue has never been litigated and remains unresolved”).
43 EPIC Report (“The 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 the Executive Branch, in pursuit of its national security
responsibilities to monitor the activities of foreign powers and their agents should not be
unduly restrained by Congress and the courts. The removal of the ‘foreign power’ predicate
for pen register/trap and trace surveillance upsets that delicate balance”).
CRS-34
Summary. Section 214 recasts FISA pen register/trap & trace order
procedures so that they apply to electronic (e-mail and other Internet communications
as well as to telephone communications), 50 U.S.C. 1842.
! The change is comparable in some respects to a similar enlargement
for law enforcement in §216 which does not expire, 18 U.S.C.
3123(b), 3127(4)).
! The section precludes exercise of emergency authority or issuance
in connection with an investigation based solely on the exercise of
first amendment rights.
! The section is constitutionally permissible, but requires court order
nonetheless and is first amendment sensitive.
! Critics might argue that the expansion to cover Internet use is
dramatic; that the FISA expansion lacks some of the safeguards
found in its law enforcement counterparts; and that in terrorism
cases the authority available to law enforcement officials under
section 216 of the act which does not expire should be sufficient.
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. 1861.44
Background. Section 215 began as a request for administrative subpoena
authority to replace a more narrowly drawn FISA procedure:
The "business records" section of FISA (50 U.S.C. §§ 1861 and 1862)
requires a formal pleading to the Court and the signature of a FISA judge (or
magistrate). In practice, this makes the authority unavailable for most
investigative contexts. The time and difficulty involved in getting such pleadings
before the Court usually outweighs the importance of the business records
sought. Since its enactment, the authority has been sought less than five times.
This section would delete the old authority and replace it with a general
“administrative subpoena” authority for documents and records. This authority,
44 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).
CRS-35
modeled on the administrative subpoena authority available to drug investigators
pursuant to Title 21, allows the Attorney General to compel protection of such
records upon a finding that the information is relevant. §156, H.R. --, Hearings,
at 57.
The House Judiciary Committee converted the request into an amendment of the
earlier FISA procedure. In doing so it preserved at least a modicum of judicial
supervision while acceding to the Administration’s request for more expansive
authority.45
What Does Not Expire. 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)
(amending 12 U.S.C. 3414 to the make the definition of “financial institution” found
in 31 U.S.C. 5312 applicable).
Considerations. Section 215 has been among the more hotly debated
sections of the act. Librarians and library associations have been among its more
vocal critics. The Justice Department has responded that:
The library habits of ordinary Americans are of no interest to those conducting
terrorism investigations. However, historically terrorists and spies have used
libraries to plan and carry out activities that threaten our national security ...
Obtaining business records is a long-standing law enforcement tactic. Ordinary
grand juries for years have issued subpoenas to all manner of businesses,
including libraries and bookstores, for records relevant to criminal inquiries....
Section 215 authorized the FISA court to issue similar orders in national security
investigations. It contains a number of safeguards that protect civil liberties.
45 “The Administration had sought administrative subpoena authority without having to go
to court. Instead, section 156 amends title 40 U.S.C. §1861 by providing for an application
to the FISA court for an order directing the production of tangible items such as books,
records, papers, documents and other items upon certification to the court that the records
sought are relevant to an ongoing foreign intelligence investigation. The amendment also
provides a good faith defense for persons producing items pursuant to this section which
does not constitute a waiver of any privilege in any other proceeding,” H.Rept. 107-236, at
16 (emphasis added).
CRS-36
Section 215 requires FBI agents to get a court order... Section 215 has a narrow
scope... It cannot be used to investigate ordinary crimes, or even domestic
terrorism. Section 215 preserves First Amendment rights.... Section 215 provides
for congressional oversight. Myths at §215.
Section 215 authority appears to have been little used. Critics decry the
section’s expansion beyond agents of a foreign power as well as its secrecy
provisions.46 They also question its constitutionality.47
Summary. Section 215 provides access to tangible items under the Foreign
Intelligence Surveillance Act (FISA), 50 U.S.C. 1861, by authorizing ex parte FISA
court orders in foreign intelligence (as amended), international terrorism, and
clandestine intelligence cases.
! It reverts at sunset to the vehicle rental, transportation, storage rental,
and housing accommodation business records pertaining to foreign
power or agent, 50 U.S.C. 1861, 1862 (2000 ed.).
! Other legislation expanding the definition of financial institution for
national security letter purposes, P.L.108-177, 117 Stat. 2628
46 Lee, The USA PATRIOT Act and Telecommunications: Privacy Under Attack, 29
RUTGERS COMPUTER & TECHNOLOGY LAW JOURNAL 371, 379-80 (2003)(“By expanding
the scope, Congress has now put the computer servers, records, and other property of ISPs
and other telecommunications entities within greater reach of law enforcement agents. One
particular concern with this and similar provisions, is that one whose records are sought
need not be an agent of a foreign power. United States citizens could potentially be
investigated on account of activities connecting them to an investigation of international
terrorism, provided that the investigation is not conducted solely upon the basis of activities
protected by the First Amendment to the Constitution. This section is problematic in other
ways. Judges, for example, have no authority to deny a request if the application meets the
requirements of the section. It is unnecessary to report the actual documents seized or their
usefulness to the court or Congress. While section 215(e) does not waive any privilege,
persons served by an order are gagged. Furthermore, the act overrides federal privacy
statutes and explicitly bars notice to the party whose records are being disclosed.
Individuals would be unaware of whether the government is unfairly inquiring into their
extremely private information”).
47 The USA PATRIOT Act: Violating Reasonable Expectations of Privacy Protected by the
Fourth Amendment Without Advancing National Security, 82 NORTH CAROLINA LAW
REVIEW 412, 423 (2003)(“The combination of eliminating the reasonable suspicion standard
and expanding FISA to any United States person signifies that United States citizens can be
ordered to produce records without any level of individualized suspicion of wrongdoing.
By extending FISA beyond foreign powers and their agents to United States persons and by
no longer requiring individualized suspicion to search United States persons and seize
records, the federal government has circumvented the Fourth Amendment in the name of
combating international terrorism. Even where exceptions to the warrant requirement apply,
probable cause is almost always required except where special circumstances justify
searches based on reasonable suspicion or suspicionless searches. Section 215 is
unconstitutional in that it eliminates the reasonable suspicion type standard and extends
FISA to United States persons contrary to the purpose of FISA and the spirit of the Fourth
Amendment”).
CRS-37
(2003)(12 U.S.C. 3414) might be thought to compensate for reduced
authority upon reversion.
! Grand juries can subpoena the same material with fewer restrictions
or protections; section 215 FISA orders demand senior official and
judicial approval, explicit first amendment adherence, and
Congressional reporting.
! In many instances the same material is available using national
security letter (nsl) authority.
! It is only to be used in serious national security cases.
! The authority has been rarely used, i.e., there is no evidence of abuse
or the section is unnecessary, depending on one’s perspective.
! The section produces an environment of abuse through its
elimination of safeguards (limited to third parties; requires neither
probable cause nor “articulable facts;” and need not be limited to
items relating to the target of the investigation) and through its use
of a procedure that already carries reduced safeguards (use of a
secret court, which does not weigh the evidence; and one-way gag
orders of unknown breath and duration).
Section 218 (foreign intelligence information (“the wall”)).
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 among criminal and foreign intelligence investigators, to remove
the “wall” that had been administratively constructed between. It does so by
authorizing FISA wiretap or physical search order applications even if the acquisition
of foreign intelligence information is 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).
Background. The Supreme Court has held that the assertion of the
President’s national security powers will not excuse the failure to comply with the
Fourth Amendment’s warrant requirements during the course of an investigation of
domestic terrorists, United States v. United States District Court (Keith), 407 U.S.
297, 314-21 (1972). The Court expressly declined to address or express any opinion
with regard to “the issues which may be involved with respect to activities of foreign
powers or their agents,” Id. at 321-22. Nor would the Court hold that standards and
procedures similar those of Title III need necessarily have to be duplicated in such
cases, Id. at 22.
Prior to Keith, “[f]or decades Presidents had claimed inherent power to conduct
warrantless electronic surveillance in order to gather foreign intelligence in the
interests of national security,” ACLU v. Barr, 952, F.2d 457, 460 (D.C. Cir. 1991).
CRS-38
Following Keith, when defendants in criminal proceedings raised constitutional
challenges the lower federal courts in at least three circuits “sustained the President’s
power to conduct warrantless electronic surveillance for the primary purpose of
gathering foreign intelligence information, Id. at 461(emphasis added).48 After
Congress enacted FISA, several courts used this “primary purpose” language to
respond to the arguments of criminal defendants who challenged the FISA “the
purpose” certification and who argued that FISA had been used solely to avoid the
more stringent Title III requirements demanded in a criminal investigation.49
In the aftermath of 9/11, the Administration sought to change the “the purpose”
certification requirement to a “a purpose” certification requirement, §153, H.R.--,
Hearing, at 74. Its explanation was concise, “Current law requires that FISA be used
only where foreign intelligence gathering is the sole or primary purpose of the
investigation. This section will clarify that the certification of a FISA request is
supportable where foreign intelligence gathering is ‘a’ purpose of the investigation.
This change would eliminate the current need continually to evaluate the relative
weight of criminal and intelligence purposes, and would facilitate information
sharing between law enforcement and foreign intelligence authorities which is critical
to the success of anti-terrorism efforts,” Hearing at 56-7.
Both House and Senate bills substituted the final language, “a significant
purpose,” §153, H.R. 2975, H.Rept. 107-236, at 8; §218, S. 1510, 147 Cong. Rec.
S10313 (daily ed. Oct. 4, 2001). The House Judiciary Committee characterized the
change as “a compromise between current law and what the Administration has
proposed,” H.Rept. 107-236, at 60, and the FISA review court concluded that the
change “imposed a requirement that the government have a measurable foreign
48 Citing, United States v. Brown, 484 F.2d 418 (5th Cir. 1973); United States v. Butenko,
494 F.2d 593 (3d Cir. 1974); and United States v. Truong, 629 F.2d 908 (4th Cir. 1980).
49 United States v. Duggan, 743 F.2d 59, 77-8 (2d Cir. 1984)(emphasis added)(“FISA
permits federal officials to obtain orders authorizing electronic surveillance ‘for the purpose
of obtaining foreign intelligence information. The requirement that foreign intelligence
information be the primary objective of the surveillance is plain not only from the language
of §1802(b) but also from the requirements ain §1804 as to what the application must
contain... [O]therwise valid FISA surveillance is not tainted simply because the government
can anticipate that the fruits of such surveillance may later be used, as allowed by §1806(b),
as evidence in a criminal trial”); United States v. Pelton, 835 F.2d 1067, 1075-1076 (4th
Cir.1987)(“We also reject Pelton’s claim that the 1985 FISA surveillance was conducted
primarily for the purpose of his criminal prosecution, and not primarily ‘for the purpose of
obtain foreign intelligence information’ as required by 50 U.S.C. 1802(b) ... We agree with
the district court that the primary purpose of the surveillance, both initially and throughout,
was to gather foreign intelligence information”); cf., United States v. Johnson, 952 F.2d 565,
572 (1st Cir. 1991)(“FISA applications must contain, among other things, a certification that
the purpose of the requested surveillance is the gathering of foreign intelligence
information.... Although evidence obtained under FISA subsequently may be used in
criminal prosecutions, the investigation of criminal activity cannot be the primary purpose
of the surveillance”); but see, United States v. Sarkissian, 841 F.2d 959, 964 (9th Cir.
1988)(declining to adopt the “primary purpose” standard); United States v. Hammoud, 381
F.3d 316, 334 (4th Cir. 2004)(construing FISA in its pre-USA PATRIOT Act form) (“even
if the primary purpose requirement test applies, it is satisfied here”).
CRS-39
intelligence purpose, other than just criminal prosecution of even foreign intelligence
crimes,” In re Sealed Case,310 F.3d 717, 735 (F.I.S.Ct.Rev. 2002).
What Does Not Expire. 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 504 of the act
(which does not sunset) adds language to the FISA wiretap and physical search
schemes 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).50
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.51 Thus,
the expiration of section 218 may not require reconstruction of the wall, although
applications for FISA wiretap or search orders would once again have to certify that
foreign intelligence gathering constituted “the” purpose for the application.
50 “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 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. 1805],” 50 U.S.C. 1805(k). Similar language appears in 1825(k) for physical
searches.
51 “[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 ... Apparently to avoid running afoul of the primary purpose
test used by some courts, the 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 would 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 within 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 had 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 anticipate that the underlying investigation might well have a
criminal as well as foreign intelligence objective,” 310 F.3d at 723, 725, 727.
CRS-40
Considerations. Section 218 is perhaps the most fundamental of the changes
accomplished by the expiring sections of the act. Therefore it is not surprising that
the Justice Department’s defense of the section is both extensive and explicit:
The USA PATRIOT Act authorizes government agencies to share
intelligence so that a complete mosaic of information can be compiled to
understand better what terrorists might be planning and to prevent attacks. Prior
law, as interpreted and implemented, had the effect of sharply limiting the ability
of law enforcement and intelligence officers to share information, which severely
hampered terrorism investigators’ ability to connect the dots. However, the USA
PATRIOT Act, along with changes in Attorney General Guidelines and Foreign
Intelligence Surveillance Act (FISA) court procedures, brought down this wall
separating intelligence from law enforcement and greatly enhanced foreign
intelligence information sharing among federal law enforcement and national
security personnel, intelligence agencies, and other entities entrusted with
protecting the nation from acts of terrorism. This increased ability to share
information has been invaluable to the conduct of terrorism investigations and
has directly led to the disruption of terrorist plots and numerous arrests,
prosecutions, and convictions in terrorism cases.
The recent investigation and prosecution of members of an al Qaeda cell in
Lackawanna, New York illustrates the benefits of the increased information
sharing brought about by the USA PATRIOT Act. This case involved several
residents of Lackawanna, who traveled to Afghanistan in 2001 to receive training
at an al Qaeda-affiliated camp near Kandahar. The investigation of the
“Lackawanna Six” began during the summer of 2001, when the FBI received an
anonymous letter indicating that these six individuals and others might be
involved in criminal activity and associating with foreign terrorists. The FBI
concluded that existing law required the creation of two separate investigations
in order to retain the option of using FISA: a criminal investigation of possible
drug crimes and an intelligence investigation related to terrorist threats. Over the
ensuing months, two squads carried on these two separate investigations
simultaneously, and there were times when the intelligence officers and the law
enforcement agents concluded that they could not be in the same room during
briefings to discuss their respective investigation with each other.
The USA PATRIOT Act, however, took down the “wall” separating these
two investigations by making clear that the sharing of case-sensitive information
between these two groups was allowed. As a result of key information shared by
intelligence investigators, law enforcement agents were able to learn that an
individual mentioned in the anonymous letter was an agent of al Qaeda. Further
information shared between intelligence and law enforcement personnel then
dramatically expedited the investigation of the Lackawanna Six and allowed
charges to be filed against these individuals. Five of the Lackawanna Six
pleaded guilty to providing material support to al Qaeda, and the sixth pleaded
guilty to conducting transactions unlawfully with al Qaeda. These individuals
were then sentenced to prison terms ranging from seven to ten years.
Before the passage of the USA PATRIOT Act, applications for orders
authorizing electronic surveillance or physical searches under FISA had to
include a certification from a high-ranking Executive Branch official that the
purpose of the surveillance or search was to gather foreign intelligence
information. As interpreted by the courts and later the Justice Department, this
requirement meant that the primary purpose of the collection had to be to obtain
CRS-41
foreign intelligence information rather than evidence of a crime. Over the years,
the prevailing interpretation and implementation of the primary purpose standard
had the effect of limiting coordination and information sharing between
intelligence and law enforcement personnel. Because the courts evaluated the
government’s purpose for using FISA at least in part by examining the nature and
extent of such coordination, the more coordination that occurred, the most likely
courts would find that law enforcement, rather than foreign intelligence, had
become the primary purpose of the surveillance or search.
* * *
In recent testimony before the Senate Judiciary Committee, Patrick
Fitzgerald, U.S. Attorney for the Northern District of Illinois, recounted from
personal experience how this “wall’ between law enforcement and intelligence
personnel operated in practice:
I was on a prosecution team in New York that began a criminal investigation of
Usama Bin Laden in early 1996. The team – prosecutors and the FBI agents
assigned to the criminal case – had access to a number of sources. We could talk
to citizens. We could talk to local police officers. We could talk to other U.S.
Government agencies. We could talk to foreign police officers. Even foreign
intelligence personnel. And foreign citizens. And we did all those things as
often as we could. We could even talk to al Qaeda members – and we did. We
actually called several members and associates of al Qaeda to testify before a
grand jury in New York. And we even debriefed al Qaeda members overseas
who agreed to become cooperating witnesses.
But there was one group of people we were not permitted to talk to. Who?
The FBI agents across the street from us in lower Manhattan assigned to a
parallel intelligence investigation of Usama Bin Laden and al Qaeda. We could
not learn what information they had gathered. That was the “wall.”
The USA PATRIOT Act brought down the “wall” separating intelligence
officers from law enforcement agents....
Section 218 of the USA PATRIOT Act eliminated the “primary purpose”
requirement....
The Department has moved aggressively to implement sections 218 and 504
of the USA PATRIOT Act and bring down “the wall.”
These efforts to increase coordination and information sharing between
intelligence and law enforcement officers, which were made possible by the USA
PATRIOT Act, have yielded extraordinary dividends by enabling the Department
to open numerous criminal investigations, disrupt terrorist plots, bring numerous
criminal charges, and convict numerous individuals in terrorism cases.
Examples:
! The removal of the “wall” separating intelligence and law
enforcement personnel played a critical role in the Department’s
successful dismantling of a Portland, Oregon terror cell, popularly
known as the “Portland Seven.” Members of this terror cell had
attempted to travel to Afghanistan in 2001 and 2002 to take up arms
with the Taliban and al Qaeda against United States and coalition
forces fighting there.... [A]t least one member of the cell [Battle] had
contemplated attacking Jewish schools or synagogues and had even
cased such buildings to select a target for such an attack. By the
time investigators received this information from the undercover
CRS-42
informant, they had suspected that a number of other persons ... had
been involved in the Afghanistan conspiracy. But while several of
these other individuals had returned to the United States from their
unsuccessful attempts to reach Afghanistan, investigators did not yet
have sufficient evidence to arrest them.
Before the USA PATRIOT Act, prosecutors would have faced a dilemma
in deciding whether to arrest Battle immediately. If prosecutors had failed to act,
lives could have been lost through a domestic terrorist attack. But if prosecutors
had arrested Battle in order to prevent a potential attack, the other suspects in the
investigation would have undoubtedly scattered or attempted to cover up their
crimes. Because of sections 218 and 504 ... it was clear that the FBI agents could
conduct FISA surveillance of Battle to detect whether he had received orders
from an international terrorist group to reinstate the domestic attack plan on
Jewish targets and keep prosecutors informed as to what they were learning.
This gave prosecutors the confidence not to arrest Battle prematurely while they
continued to gather evidence on the other members o the cell. Ultimately,
prosecutors were able to collect sufficient evidence to charge seven defendants
and then to secure convictions and prison sentences ranging from three to
eighteen years for the six defendants taken into custody. Charges against the
seventh defendant were dismissed after he was killed in Pakistan by Pakistani
troops.... Without sections 218 and 504 of the USA PATRIOT Act, however, this
case like would have been referred to as the “Portland One” rather than the
“Portland Seven.”
! The Department shared information pursuant to sections 218 and
504 before indicting Sami Al-Arian and several co-conspirators on
charges related to their involvement with the Palestinian Islamic
Jihad (PIJ). PIJ is alleged to be one the world’s most violent terrorist
outfits....
In this case, sections 218 and 504 ... enabled prosecutors to consider all
evidence against Al-Arian and his co-conspirators, including evidence obtained
pursuant to FISA that provided the necessary factual support for the criminal
case. By considering the intelligence and law enforcement information together,
prosecutors were able to create a complete history for the case and put each piece
of evidence in its proper context....
! Prosecutors and investigators also used information shared pursuant
to sections 218 and 504 ... in investigating the defendant in the so-
called “Virginia Jihad” case ...
! The information sharing between intelligence and law enforcement
personnel made possible by sections 218 and 504 ... was useful in
the investigation of two Yemeni citizens ... who were charged last
year with conspiring to provide material support to al Qaeda and
HAMAS....
! The Department used sections 218 and 504 to gain access to
intelligence, which facilitated the indictment of Enaam Arnaout, the
Executive Director of the Illinois-based Benevolence International
Foundation(BIF).... Arnaout ultimately pleaded guilty to a
CRS-43
racketeering charge, admitting that he diverted thousands of dollars
from BIF to support Islamic military groups in Bosnia and
Chechnya. He was sentenced to over 11 years in prison.
! The broader information sharing and coordination made possible by
sections 218 and 504 ... assisted the prosecution in San Diego of
several persons involved in an al Qaeda drugs-for-weapons plot,
which culminated in several guilty pleas. Two defendants admitted
that they conspired to distribute approximately five metric tons of
hashish and 600 kilograms of heroin originating in Pakistan to
undercover United States law enforcement officials. Additionally,
they admitted that they conspired to receive, as partial payment for
the drugs, four “Stinger” anti-aircraft missiles that they then
intended to sell to the Taliban....
! Sections 218 and 504 were critical in the successful prosecution of
Khaled Abdel Latif Dumeisi, who was convicted ... of illegally
acting as an agent of the former government of Iraq.... During this
investigation, intelligence officers conducting surveillance of
Dumeisi pursuant to FISA coordinated and shared information with
law enforcement agents and prosecutors investigating Dumeisi for
possible violations of criminal law. Because of this coordination,
law enforcement agents and prosecutors learned from intelligence
officers of an incriminating telephone conversation that took place
in April 2003 between Dumeisi and a co-conspirator. This phone
conversation corroborated other evidence that Dumeisi was acting
as an agent of the Iraqi government and provided a compelling piece
of evidence at Dumeisi’s trial. Report, at 2-8.
The absence of the wall has stimulated concerns that the cooperation between
law enforcement and intelligence officials creates the risk that coordination could be
used to evade the restricting safeguards the law imposed upon each.
The FISA appellate court found no Fourth Amendment infirmity in section 218:
Even without taking into account the President’s inherent constitutional
authority to conduct warrantless foreign intelligence surveillance, we think the
procedures and government showings required under FISA, if they do not meet
the minimum Fourth Amendment warrant standards, certainly come close. We,
therefore, believe firmly ... that FISA as amended [by section 218] is
constitutional because the surveillances it authorizes are reasonable. In re Sealed
Case, 310 F.3d 717, 746 (F.I.S.Ct.Rev. 2002).
Yet “commentators have reached differing conclusions regarding the In re
Sealed Case court’s Fourth Amendment holding. The court’s Fourth Amendment
analysis has been criticized for ‘resting on shaky and previously unexplored ground’
CRS-44
and reach[ing] the wrong conclusion under Fourth Amendment principles and
precedent.”52
Summary. By virtue of section 218 FISA surveillance or physical search
applications need only certify that foreign intelligence gathering is a “significant”
purpose for seeking the order rather than “the” purpose, 50 U.S.C. 1804(a)(7)(B),
1823(a)(7)(B).
! The section makes it clear that a “wall” between FBI criminal and
intelligence investigators is unnecessary.
! Section 504 (50 U.S.C. 1806(k); 1825(k))(law enforcement
cooperation does not preclude purpose certification) which does not
expire may be sufficient to prevent reconstruction of the wall.
! In re Sealed Case, 310 F.3d 717 (F.I.S.Ct.Rev. 2002) suggests that
even prior to the USA PATRIOT Act the wall was neither
constitutionally nor statutorily required.
! Facially, FISA procedure for issuance of a surveillance order seems
more demanding than Title III (law enforcement wiretaps) but more
accommodating after issuance.
! Use of FISA has increased dramatically over the years; Title III
seems to be seldom used in terrorism cases (mostly used in drug
trafficking cases).
! The existence of the wall is like trying to do one jigsaw puzzle on
two separate tables.
! The wall prevented effective communication and cooperation in
terrorism cases; removal has been beneficial.
! The wall was designed to guarantee that law enforcement and
intelligence officer would honor the limitations placed upon their
respective wiretapping and search warrant authority.
Section 223 (civil liability for certain unauthorized disclosures).
Section 223 is discussed above.
52 The USA PATRIOT Act: Violating Reasonable Expectations of Privacy Protected by the
Fourth Amendment Without Advancing National Security, 82 NORTH CAROLINA LAW
REVIEW 412, 425 (2003), quoting, Foreign Intelligence Surveillance Court of Review Holds
that Prosecutors May Spy on American Agents of Foreign Powers Without a Warrant – In
re Sealed Case, 310 F.3d 717 (F.I.S.Ct.Rev. 2002), 116 HARVARD LAW REVIEW 2246, 2250
(2003), and citing, Whitehead & Aden, at 1101-104. See also, Leaving FISA Behind: The
Need to Return to Warrantless Foreign Intelligence Surveillance, 113 YALE LAW JOURNAL
179, 199 (2003)(“sweeping opinion that contradicted longstanding interpretations of FISA
across the circuits”); The Fuss Over Two Small Words: The Unconstitutionality of the USA
PATRIOT Act Amendments to FISA Under the Fourth Amendment, 71 GEORGE
WASHINGTON LAW REVIEW 291, 345 (2003)(“the Review Court far from resolved the issue
of whether FISA is constitutional under the Fourth Amendment and its holding remains
vulnerable to collateral attack in the federal courts”).
CRS-45
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 a 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). On its face, section 225 seems to grant
immunity to anyone who complies with a FISA order – surveillance (wiretap),
physical search, pen register/trap and trace device, or access to tangible items – that
is, providing a grant of immunity for compliance with an order under the entire Act.53
It may be, however, the immunity is only available for compliance with a FISA
surveillance order; hence, the reference to a FISA wiretap in the caption, and the
subsection’s placement in 50 U.S.C. 1805 which relates to the issuance of FISA
wiretap orders and which empowers the court to order a “common carrier, landlord,
custodian, or other specified person” to furnish “all information, facilities, or
technical assistance” for execution of a surveillance order.
Background. Section 225 came late to the legislative process. It cannot be
found in the Administration request, Hearings, at 67-90, or in S. 1501 as passed by
the Senate, 147 Cong. Rec. S10604-630 (daily ed. Oct. 11, 2001), or in H.R. 2975
as passed by the House, 147 Cong. Rec. H6726-758 (daily ed. Oct. 12, 2001). It first
appears at the eleventh hour in H.R. 3162, 147 Cong. Rec. H7166 (daily ed. Oct. 23,
2001). The section-by-section analysis that accompanied consideration of the bill
simply states, “Provides immunity from civil liability from subscribers, tenants, etc.
for entities that comply with FISA wiretap orders,” 147 Cong. Rec. H7198 (daily ed.
Oct. 23, 2001).
What Does Not Expire. 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 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.
Considerations. In the absence of an explicit enforcement device, explicit
immunity provisions encourage communications providers and other third parties to
cooperate in the execution of a FISA order. On the other hand, immunity from civil
liability removes one of the principal incentives for a third party addressed in a FISA
order to petition the court to quash or modify the order.
53 50 U.S.C. 1805(h)(emphasis added)(“No cause of action shall lie in any court against any
provider of a wire or electronic communication service, landlord, custodian, or other person
(including any officer, employee, agent, or other specified person thereof) that furnishes any
information, facilities, or technical assistance in accordance with a court order or request
for emergency assistance under this Act”).
CRS-46
Summary. Section 225 establishes immunity for assistance in the execution
of a FISA surveillance order, and perhaps for compliance with any FISA order, 50
U.S.C. 1805(h).
! It encourages cooperation and discourages court challenges.
Section 6001 of P.L. 108-458 (individual terrorists as agents of
foreign powers).
As noted at the outset, section 6006 of the Intelligence Reform and Terrorism
Prevention Act of 2004, P.L. 108-458, 118 Stat. 3742 (2004), (a) amends the
definition of “agent of a foreign power” for FISA purposes to include a foreign
national who is preparing for or engaging in international terrorism, and (b) makes
the sunset provisions of section 224 applicable to the amendment.54 FISA makes
agents of a foreign power the appropriate targets for FISA surveillance and physical
search orders, 18 U.S.C. 1805, 1824. The definition of agents of a foreign power
already included individuals preparing for or engaging in international terrorism for
or on behalf of a foreign power, 50 U.S.C. 1801(b)(2)(C). Section 6001 excuses the
need to show that the illicit activity is being conducted at the behest or benefit of a
foreign power – as long as the target is not an American (not a U.S. person).
Background. The language of section 6001 is identical to that of section 1 of
S. 113, as passed by the Senate, 149 Cong. Rec. S5899 (daily ed. May 8, 2003);
S.Rept. 108-40 (2003).55 On the House side, the Judiciary Committee report on H.R.
10 had recommended a comparable provision in the form of a presumption, H.Rept.
108-724, Pt. 5, at 34,170-1 (2004). Similar legislative proposals had been considered
during the 107th Congress, see e.g., S. 2586 and S. 2659, Amendments to the Foreign
Intelligence Surveillance Act: Hearing Before the Senate Select Comm. on
Intelligence, 107th Cong., 2d Sess. (2002).
54 Section 6001 provides, “(a) In General.– Section 101(b)(1) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801(b)(1)) is amended by adding at the end the
following new subparagraph: ‘(C) engages in international terrorism or activities in
preparation therefore; or’. (b) Sunset. – The amendment made by subsection (a) shall be
subject to the sunset provision in section 224 of Public Law 107-56 (115 Stat. 295),
including the exception provided in subsection (b) of such section 224.”
FISA defines international terrorism to mean “activities that – (1) 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 any State; (2) appear to be intended – (A) to intimidate or coerce a
civilian population; (B) to influence the policy of a government by intimidation or coercion;
or (C) to affect the conduct of a government by assassination or kidnaping; and (3) occur
totally outside the United States, or transcend national boundaries in terms of the means by
which they are accomplished, the persons they appear intended to coerce or intimidate, or
the locale in which their perpetrators operate or seek asylum,” 50 U.S.C. 1801(c) .
55 See CRS Report RS22011, Intelligence Reform and Terrorism Prevention Act of 2004:
“Lone Wolf” Amendment to the Foreign Intelligence Surveillance Act; and CRS Report
RS21472, Proposed Change to the Foreign Intelligence Surveillance Act (FISA) under S.
113.
CRS-47
The Senate report explains the rationale for the section as it appeared in S. 113:
The purpose of S. 113 is to amend the Foreign Intelligence Surveillance Act
of 1978 (FISA) ... to permit surveillance of so-called “lone wolf” foreign
terrorists. S. 113 would allow a FISA warrant to issue upon probable cause that
a non-United States person is engaged in or preparing for international terrorism,
without requiring a special showing that the non-United States person also is
affiliated with a foreign power. By eliminating the requirement of a foreign-
power link for FISA warrants in such cases, S. 113 would allow U.S. intelligence
agencies to monitor foreign terrorists who, though not affiliated with a group or
government, pose a serious threat to the people of the United States. In light of
the significant risk of devastating attacks that can be carried out by non-United
States persons acting alone, individual terrorists must be monitored and stopped,
regardless of whether they operate in coordination with other individuals or
organizations,” S.Rept. 108-40 at 2.
What Does Not Expire. Section 6001 explicitly embraces the sunset
exception found in section 224(b). Thus, the amendment in section 6001 continues
to apply after December 31, 2005 with respect to any particular foreign intelligence
investigation begun prior to that date.
Considerations. At first blush, there might be some question of whether a
provision, that declares that agents of a foreign power need not be agents of a foreign
power, is sufficient to come within Keith case reservations concerning the fourth
amendment’s application in terrorism cases.56 The multi-national definition of
“international terrorism” and the limitation of the section’s amendment to foreign
nationals may suffice, but the question seems to have troubled some, but not all, of
the witnesses who testified regarding similar legislation in the 107th Congress.57
Some Members of the Senate Judiciary Committee also suggested that section’s
rationale might have to be reenforced if it is to be reauthorized.58
56 “We have not addressed, and express no opinion as to, the issues which may be involved
with respect to activities of foreign powers or their agents,” United States v. United States
District Court, 407 U.S. 297, 321-22 (1972).
57 S. 2586 and S. 2659, Amendments to the Foreign Intelligence Surveillance Act: Hearing
Before the Senate Select Comm. on Intelligence, 107th Cong., 2d Sess. (2002), compare,
statement of Mr. James A. Baker, United States Department of Justice Counsel for
Intelligence Policy, at 24 (“The Department has concluded that S. 2586 is constitutional”),
with, statement of Mr. Jerry Berman, Executive Director of the Center for Democracy and
Technology, at 41 (“Both [S. 2586 and S. 2659] create grounds for serious constitutional
challenges by defendants in criminal cases if information collected under these warrants are
used as evidence in criminal prosecutions”). S.Rept. 108-40 at 98-102 reprints a more
extensive explanation of the Justice Department’s view of the constitutionality of S. 2586.
58 S.Rept. 108-40 at 11-2 (additional views of Sens. Leahy and Feingold (“In many ways,
S. 113 seems to be a legislative change in search of a rationale. First, we were told that this
amendment to FISA would have allowed the FBI to obtain a warrant before 9-11 to search
the computer and belongings of Zacarias Moussaoui. Then, after it became clear ... that the
FBI had all the evidence it needed to procure such a warrant ... the rationale changed. Next,
we were told that the bill was necessary to conduct surveillance of ‘lone wolf terrorists,’
who purportedly operate in isolation. Next, after it became clear that few, if any,
international terrorists work alone and that existing criminal tools such as Title III were
CRS-48
Summary. Section 6001 amends the FISA definition of “agent of a foreign
power” to include a foreign national who is preparing for or engaging in international
terrorism thereby excusing the need to show that the illicit activity is being conducted
at the behest or benefit of a foreign power – as long as the target is not an American
(not a U.S. person).
! Although Justice Department believes the section is constitutional,
there might be some question of whether defining an agent of a
foreign power as one who need not be an agent of foreign power
comes within Keith reservations for agents of a foreign power.
USA PATRIOT Act Sections of Title II That Do Not Expire
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;
sufficient to handle those rare cases, we were told that the measure was necessary because
it was hard to prove the connection between terrorists. Now, in this report, the implication
is revived that the FBI’s pre-9/11 failures were due in large part to problems with the law....
It appears, however, that the search for a rationale to support this bill – and one that can be
put forth without meaningful oversight of FISA’s actual implementation – continues in full
force. When the sunset on this measure arrives we will need stronger rationales than this
to justify its extension”).
CRS-49
! section 210 (scope of subpoenas for records of electronic
communications) (expands the authority for subpoenas directing
communications service 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.
CRS-50
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.
CRS-51
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 one 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
CRS-52
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 to
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 such orders
that may be executed anywhere
had to be issued in the place where they
in the world, F.R.Crim.P.
were to be executed
41(b)(3)
CRS-53
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)