USA PATRIOT Act Sunset: Provisions That Were to Expire on December 31, 2005

Congressional research reportFeb 6, 2006

Ask Donna

What actually matters in this document.

Text

ȱ ȱȱǱȱȱȱ

ȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

ȱ¢ȱ

ȱȱȱȱȱ ȱ

¢ȱŜǰȱŘŖŖŜȱ

ȱȱȱ

ŝȬśŝŖŖȱ

ǯǯȱ

řŘŗŞŜȱ

ȱȱȱ

Prepared for Members and Committees of Congress

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

¢ȱ

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 were to expire on December 31, 2005; their expiration date

has been postponed until March 10, 2006. 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

March 10, 2006 the law reverts to its previous form unless it has been amended or extended in the

interim.

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

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. Related reports include

CRS Report RL33239, USA PATRIOT Improvement and Reauthorization Act of 2005 (H.R.

3199): Section-by-Section Analysis of the Conference Bill, and CRS Report RS22348, USA

PATRIOT Improvement and Reauthorization Act of 2005 (H.R. 3199): A Brief Look).

ȱȱȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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) .............. 13

Section 209 (Seizure of Voice-mail Messages Pursuant to Warrants) .............................. 14

Section 212 (Emergency Disclosure of Electronic Surveillance) ..................................... 16

Section 217 (Interception of Computer Trespasser Communications) ............................. 18

Section 220 (Nationwide Service of Search Warrants for Electronic Evidence) .............. 21

Section 223 (Civil Liability for Certain Unauthorized Disclosures) ................................ 24

Temporary Foreign Intelligence Sections................................................................................ 26

Section 206 (Roving Surveillance Authority under the Foreign Intelligence

Surveillance Act of 1978) .............................................................................................. 27

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) ............................ 32

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) ........................................... 44

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

Table 1. Expiring USA PATRIOT Act Sections and Subsections.................................................. 49

Author Contact Information .......................................................................................................... 51

ȱȱȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

(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 P.L. 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).

Section 224(a) of the Uniting and Strengthening America by Providing Appropriate

Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (18

U.S.C. 510 note) is amended by striking “December 31, 2005” and inserting “February 3,

2006.” P.L. 109-160, 119 Stat. _____(2005).

Section 224(a) of the Uniting and Strengthening American by Providing Appropriate

Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001

(P.L. 107-56; 115 Stat. 295) is amended by striking “February 3, 2006” and inserting “March

10, 2006.” H.R. 4659, P.L. 109-___, 120 Stat. (2006).

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 March 10, 2006. 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 March 10,

2006? 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 March 10, 2006? 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. 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

ȱȱȱ

ŗȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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.

The USA PATRIOT Act sections were originally set to sunset on December 31, 2005. By then,

both Houses had passed legislation that amended and extended the expiring sections (H.R. 3199)

and a conference report resolving their differences had been issued, H.Rept. 109-433 (2005). In

order to provider further time for consideration, the expiration date has been extended twice, first

until February 3, 2006, P.L. 109-160 (2006), and more recently until March 10, 2006, H.R. 4659,

P.L. 109-____ (2006).

ȱȱȱ

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 March 10, 2006, 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 presunset 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 possibility.2

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”).

“[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

(continued...)

ȱȱȱ

Řȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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.

¢ȱ ȱȱȱȱȱ ȱ

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 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

(...continued)

change . . ..” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED, 1775

(1986)(phonetic pronunciation guide omitted).

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”).

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”).

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 encompasses wire, oral and electronic communications it is often referred to as the

“wiretap” statute as a matter of convenience.

ȱȱȱ

řȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

demanding, although it generally requires a court order, warrant, or subpoena, 18 U.S.C. 27012702.

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.

ȱŘŖŗȱǻ¢ȱȱ ȱǰȱǰȱȱȱ

ȱȱȱǼȱȱŘŖŘȱǻ¢ȱȱ ȱǰȱ

ǰȱȱȱȱȱȱȱȱȱȱ

Ǽȱ

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).

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 version of S. 1510, 147 Cong. Rec.

S10309 (daily ed. October 4, 2001). They were referred to as among the “number of sensible

proposals that should not be controversial,” 147 Cong. Rec. S10552 (daily ed. October 11,

2001)(remarks of Senator Leahy), and otherwise seem to have attracted little attention.

ȱȱȱ¡ȱ

Sections 201 and 202 expire on March 10, 2006. By operation of subsection 224(b), law

enforcement officials may seek a wiretap order in conjunction with an investigation of any of the

ȱȱȱ

Śȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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 March 10, 2006.

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, P.L. 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 March 10, 2006; 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 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

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”).

ȱȱȱ

śȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

At one point, the Justice Department indicated 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 An official later testified that the authority under section 201 had

been used on four occasions in two cases and that the authority under section 202 had been used

twice.8 One of the section 201 cases “involved an Imperial Wizard of the White Knights of the Ku

Klux Klan who attempted to purchase hand grenades for the purpose of bombing abortion clinics

and was subsequently convicted of numerous explosives and firearms offenses.”9 The section 202

case involved “a computer fraud investigation that broadened to include drug trafficking.”10

Critics might argue that the authority conveyed by sections 201 and 202 is unnecessary. Federal

law would seem to provide ample authority elsewhere for wiretaps in the case of the somewhat

specific examples the Department supplied. Drug cases have long been a staple of the federal and

state law enforcement wiretapping practices.11 Federal drug and explosives offenses and

conspiracy to violate them are among the existing permanent federal wiretap predicates, 18

U.S.C. 2516(1)(c), (e), (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.12

Such critics might argue that the statistics published annually by the Administrative Office of the

United States Courts confirm 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),

2003 Wiretap Report, Table 3 (2004), available on January 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

Available on Jan. 6, 2005 at http://www.lifeandliberty.gov/docs/071304_report_from_the_field.pdf; see also, U.S.

Department of Justice, Dispelling the Myths: Dispelling Some of the Major Myths About the USA PATRIOT Act

(Myths), available on Jan. 6, 2005 at http://www.lifeandliberty.gov/subs/add_myths.htm.

Oversight Hearing on the Implementation of the USA PATRIOT Act: Effect of Sections 203(b) and (d) on Information

Sharing: Hearings Before the Subcomm. on Crime, Terrorism and Homeland Security of the House Comm. on the

Judiciary (House Hearings), 109th Cong., 1st Sess. (2005), statement of Michael Sullivan, United States Attorney for

the District of Massachusetts, available on June 21, 2005 at http://judiciary.house.gov/media/pdfs/sullivan050305.pdf.

Id.

S.Rept. 90-1097, at 98-9 (1967).

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.

ȱȱȱ

Ŝȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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).13

¢ȱ

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.

•

Section 202 authority has been in one case that eventually broadened into a drug

trafficking case.

ȱŘŖřǻǼȱǻ¢ȱȱȱǰȱǰȱȱȱ ȱ

ǼȱȱŘŖřǻǼȱǻ ȱ¢ȱȱȱȱ ȱ

Ǽȱ

Evidence obtained through a court-ordered wiretap for federal law enforcement purposes may be

disclosed under limited circumstances (e.g., testimony in judicial proceedings or disclosure to

other law enforcement officials for official use), 18 U.S.C. 2517. Prior to the act, there was no

explicit authorization for disclosure to intelligence officials.

Subsection 203(b) amends federal wiretap law to permit law enforcement officials to disclose

wiretap evidence to various federal officials (“law enforcement, intelligence, protective,

immigration, national defense [and] national security official[s]”) when it involves foreign

intelligence, counterintelligence, or foreign intelligence information, 18 U.S.C. 2517(6).

Subsection 203(d) authorizes law enforcement officers to share foreign intelligence,

counterintelligence, and foreign intelligence information with the same set of federal officials

notwithstanding any other legal restriction.

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 actexpands 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”).

ȱȱȱ

ŝȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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).

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 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—

ȱȱȱ

Şȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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. October 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,14 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.

ȱȱȱ¡ȱ

The authority for disclosure under subsections 203(b)(wiretap) or 203(d)(catch-all) sunsets on

March 10, 2006, 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-March 10, 2006

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.

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”).

ȱȱȱ

şȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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 March 10, 2006; (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)).15

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 March 10, 2006, 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. 4035d).16

“(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).

“Section 203(d)(1) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept

and Obstruct Terrorism (USA PATRIOT ACT) (P.L. 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).

ȱȱȱ

ŗŖȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

Justice Department officials have explained that the section 203(b), along with several other

sections of the USA PATRIOT Act scheduled to expire, have made it possible for criminal law

enforcement and foreign intelligence investigators to share information for the more effective

performance of their duties, particularly in terrorism cases.17 By way of example, they have

testified that the authority under section 203(b) has been used to advise federal intelligence

officials of “the manner and means by which monies were funneled to Iraq,” and efforts to

support and supply a foreign terrorist organization.18 They argue that to allow section 203(b) and

other USA PATRIOT Act information sharing provisions to expire would be inconsistent with the

information sharing legislation Congress has enacted subsequently. They point particularly to

provisions that allow sharing with foreign officials: “Therefore, were section 203(b) allowed to

expire, United States law enforcement officers would be allowed to share certain foreign

information collected through criminal investigative wiretaps with foreign intelligence services,

such as MI-5, but would arguably not be allowed to share that same information with the CIA.”19

The concern with information sharing has always been that law enforcement investigators will

call upon foreign intelligence powers in order to avoid the constitutional and other legal

safeguards that ordinarily attend the exercise of their own authority. A corresponding concern is

that foreign intelligence investigators will likewise call upon law enforcement authority to avoid

the safeguards that ordinarily attend their own foreign intelligence authority. At least one

Congressional hearing witness has speculated that the availability of section 203 may have led to

the use of criminal law enforcement powers for purposes of an “intelligence probe.”20

Others may question whether there are any real consequences of expiration. Other permanent

provisions of the wiretap law will continue to allow information sharing with other investigative

and law enforcement officials21 and in terrorism cases with intelligence authorities.22 The

E.g., Oversight of the USA PATRIOT Act: Hearing Before the Senate Comm. on the Judiciary (Senate Hearings),

109 Cong., 1st Sess. (2005)(statement of Attorney General Alberto R. Gonzales), available on June 21, 2005 at

http://judiciary.senate.gov/testimony.cfm?id=1439&wit_id=3936.

Oversight Hearing on the Implementation of the USA PATRIOT Act: Effect of Sections 203(b) and (d) on Information

Sharing: Hearings Before the Subcomm. on Crime, Terrorism and Homeland Security of the House Comm. on the

Judiciary (House Hearings), 109th Cong., 1st Sess. (2005) (statement of Chief Barry M. Sabin, Counterterrorism

Section, Criminal Division, United States Department of Justice)(Sabin statement), available on June 21, 2005 at

http://judiciary.house.gov/media/pdfs/sabin041905.pdf.

Sabin statement citing 18 U.S.C. 2517(7) which permits sharing with foreign investigative and law enforcement

officials.

House Hearings, statement of Timothy H. Edgar, National Security Policy Counsel, American Civil Liberties Union

(“According to the Washington Post, federal officials have sought to justify the raids ‘as an intelligence probe,

designed not necessarily to yield criminal charges but to track possible terrorist activity.’ This justification strongly

suggests that the material seized . . . has been copied and shared with intelligence agencies under section 203(d) of the

Patriot Act”), available on June 21, 2005 at http://judiciary.house.gov/media/pdfs/sabin041905.pdf.

“Any investigative or law enforcement officer 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 to another 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,” 18 U.S.C. 2517(1).

“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

(continued...)

ȱȱȱ

ŗŗȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

suggestion that information may be shared with MI-5 but not the CIA is bit perplexing. The

mantel of “investigative or law enforcement” agency ought to fit American and British

intelligence services equally well. Yet it may not be an apt description of either.23

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.24

Justice Department officials have identified a number of instances where law enforcement

authorities have shared information with foreign intelligence officials in reliance on section

203(d) including:

Information about the organization of a violent jihad training camp including training in

basic military skills, explosives, and weapons, as well as a plot to bomb soft targets abroad . .

. Travel information and the manner that monies were channeled to members of a criminal

conspiracy in Portland who traveled from the United States intending to fight alongside the

Taliban. . . Information . . .about the manner and means of [a] terrorist group’s logistical

support network . . . [D]etails regarding the application forms which permitted attendance at

the [terrorist] training camp [overseas]. . . information about the . . . practices, logistical

support and targeting information [of an Al-Qaeda] training camp in Afghanistan. Sabin

statement, 3-4.

(...continued)

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(8).

18 U.S.C. 2510(7) (“‘Investigative or law enforcement officer’ means any officer of the United States or of a state of

political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses

enumerated int his chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such

offenses”). There may be a distinction between agents with foreign intelligence responsibility in the FBI and those in

the CIA. Sharing Title III Electronic Surveillance Material With the Intelligence Community, Op. Off. Legal Counsel,

(Oct. 17, 2000) (“An ‘investigative or law enforcement officer,’ however, must have the power to investigate or make

arrests for offenses enumerated in §2516. Absent some specific authority to investigate or make arrests for such

offenses, a member of the intelligence community is not an investigative or law enforcement officer for purposes of

Title III”), available on June 21, 2005 at http://www.usdoj.gov/olc/titleIIIfinal.htm.

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 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”).

ȱȱȱ

ŗŘȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

It has never been precisely clear exactly what obstacles, if any, section 203(d) cleared away.25 It is

presumably intended to supplement rather than supplant the grand jury and wiretap information

sharing provisions that immediately precede it in sections 203(a) and 203(b), but even that is not

necessarily the case.

¢ȱ

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.

•

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.

ȱŘŖŚȱǻȱȱ ȱ¡ȱȱȱȱ

ȱȱȱȱǰȱǰȱȱȱǼȱ

Section 204 is essentially a technical amendment. Prior wiretap law makes it clear that the general

prohibitions against wiretapping, 18 U.S.C. 2511, and against the acquisition of communications

records and stored electronic communications, 18 U.S.C. 2701, do not preclude foreign

intelligence gathering activities in international or foreign communications systems, 18 U.S.C.

2511(2)(f)(2000 ed.). Section 204 amends the provision to add that the general prohibition against

the use of pen registers or trap and trace devices, 18 U.S.C. 3121, is likewise no impediment to

such activities, 18 U.S.C. 2511(2)(f).26

“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,” 147 Cong. Rec. S11002 (daily ed. Oct. 25, 2001)(remarks of

Senator Leahy).

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).

ȱȱȱ

ŗřȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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).

ȱȱȱ¡ȱ

The authority under section 204 ends on March 10, 2006 except for investigations relating to

offenses or potential offenses begun or occurring before then. The provisions of section 204 have

not been substantively amended.

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

pen registers to gather foreign intelligence information.

¢ȱ

- 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.

ȱŘŖşȱǻ£ȱȱȬȱȱȱȱǼȱ

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.

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 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.

ȱȱȱ

ŗŚȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

ȱȱȱ¡ȱ

The authority under section 209 ends on March 10, 2006 except for investigations relating to

offenses or potential offenses begun or occurring before then. The provisions of section 209 have

not been substantively amended.

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 authority heralds a loss of personal privacy.27

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”).

ȱȱȱ

ŗśȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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.

¢ȱ

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.

ȱŘŗŘȱǻ¢ȱȱȱȱǼȱ

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).

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 72.28 The House and Senate proposals contained essentially the same provision, §110, H.R.

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 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.”

ȱȱȱ

ŗŜȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

2975, H.Rept. 107-236, at 6-7; §212, S. 1510, 147 Cong. Rec. S10311 (daily ed. October 4,

2001).

ȱȱȱ¡ȱ

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 March 10, 2006

(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.

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 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

ȱȱȱ

ŗŝȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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.”

¢ȱ

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.

ȱŘŗŝȱǻ ȱȱȱȱǼȱ

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 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).

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. October 11, 2001). The second

initially appeared in §217 of H.R. 2975, as passed by the House, 147 Cong. Rec. H6744-745

(daily ed. October 12, 2001).29

Neither exception appeared in H.R. 2975 as reported by the House Judiciary Committee, §105, H.R. 2975, H.Rept.

(continued...)

ȱȱȱ

ŗŞȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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.

ȱȱȱ¡ȱ

The authority under section 217 expires on March 10, 2006. 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” March 10, 2006. In this context, “potential offenses” may refer those crimes for which

preparation but not completion predates March 10, 2006; 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 (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).30

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 Actallows victims of computer attacks by cyberterrorists 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.

(...continued)

107-236, at 5 (2001).

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”).

ȱȱȱ

ŗşȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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 technologyneutral, 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 been use “comparatively rarely.”31 They have

subsequently offered its use in an identify theft investigation by way of example.32

Some critics have expressed the concern that the provision might be used to circumvent the

safeguards and oversight that attends Title III wiretaps.33

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).

House Hearings, statement of Deputy Assistant Director Steven M. Martinez , FBI Cyber Division (“the group used

chat rooms and fraudulent websites to commit identity theft, but managed to provide themselves with privacy by using

false names to get e-mail accounts. The most important tool in their bid to remain anonymous was their use of a proxy

server they broke into and then reconfigured. The identity thieves used the proxy server to disguise where all of their

Internet communications were coming from. The owner of the proxy server was himself a victim of the crime, his

computer having essentially been hijacked and transformed into a hub of a criminal operation. When he determined that

his computer had been hacked he provided the FBI with consent to monitor the intruder and hopefully to catch him.

The computer owner’s ability to bring in the FBI paid off, not just for him but for the countless other victims of the

identity theft. By taking advantage of hacker trespasser monitoring, the FBI gathered leads that resulted in the

discovery of the true identity of the subject. The subject was later indicted and is not awaiting trial”), available on June

28, 2005 at http://judiciary.house.gov/media/pdfs/martinez042105.pdf.

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

(continued...)

ȱȱȱ

ŘŖȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

¢ȱ

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.

ȱŘŘŖȱǻ ȱȱȱȱȱȱȱǼȱ

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.

(...continued)

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”).

ȱȱȱ

Řŗȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

But for the addition of a technical conforming amendment, section 220 passed untouched through

the legislative process from request to presidential signature.34 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.

ȱȱȱ¡ȱ

The authority under section 220 terminates on March 10, 2006 except with respect to earlier

crimes or potential crimes. Section 219, however, appears to mitigate the impact of section 220’s

expiration in certain terrorism cases. Section 219 is not subject to the sunset provision. It provides

for at least nation-wide, and perhaps world-wide, service of federal search and arrest warrants in

cases of international or domestic terrorism as defined in 18 U.S.C. 2331.35

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).

“[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).

ȱȱȱ

ŘŘȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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 Jihad36 and the

“shoebomber”37 cases . . . as well as time-sensitive criminal investigations, such as [one]

involving a dangerous fugitive38. . .. 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 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.

The Attorney General has expressed the view that “It is imperative that section 220 be renewed;

allowing the provision to expire would delay many time-sensitive investigations and result in the

inefficient use of investigators’, prosecutors’, and judges’ time.”39

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.40 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.

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).

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.

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.

House Hearings, statement of Attorney General Alberto R. Gonzales, available on June 28, 2005 at

http://judiciary.house.gov/OversightTestimony.aspx?DI=323.

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”).

ȱȱȱ

Řřȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

¢ȱ

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.

ȱŘŘřȱǻȱ¢ȱȱȱ£ȱǼȱ

Unrelated to section 223, federal law imposes criminal penalties for illegal wiretapping, 18

U.S.C. 2511, unlawful access to store communications (e.g., e-mail or voice mail), or illegally

using a pen register or trap and trace device, 18 U.S.C. 3121. Except with respect to pen registers

and trap and trace devices, the same misconduct also triggers civil liability, 18 U.S.C. 2520, 2707.

There is a comparable set of provisions imposing criminal and civil liability for FISA surveillance

and physical search violations, 50 U.S.C. 1809, 1810, 1827, 1828.

Although the federal wiretap statute outlaws use or disclosure of unlawfully intercepted

communications, 18 U.S.C. 2511(1)(c), (d), and describes narrow circumstances under which

communications intercepted under a court order may be used or disclosed, 18 U.S.C. 2517,

without more, it does not expose to civil or criminal liability those who disclose or use

communications lawfully intercepted under a court order.41

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.

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).

ȱȱȱ

ŘŚȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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.

October 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).

ȱȱȱ¡ȱ

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 March 10, 2006. This could mean either that no

suit (pending or merely actionable) survives thereafter, or alternatively that pending suits survive

but none may be filed thereafter, or that regardless of when it is filed any cause of action will only

survive with respect to matters occurring prior to that date.

Under some circumstances the demise of a cause of action deprives the courts of subject matter

jurisdiction. 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.”42

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 [March 10, 2006], or with respect to any particular offense or potential offense that began

or occurred before” March 10, 2006; 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 March 10, 2006. Although the language seems to

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).

ȱȱȱ

Řśȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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.43

The Justice Department reports that “[t]here have been no administrative disciplinary proceedings

or civil actions initiated under section 223 of the actfor 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. The Attorney General has urged Congress to make

this section permanent.44

¢ȱ

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.

•

The Attorney General has urged Congress to make section 223 permanent.

•

Section 223 might serve as a disincentive to information sharing.

¢ȱȱ ȱȱ

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 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

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).

House Hearings, statement of Attorney General Alberto R. Gonzales, available on June 28, 2005 at

http://judiciary.hosue.gov/OversightTestimony.aspx?ID=323.

ȱȱȱ

ŘŜȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

from the fact that an international terrorist may appropriately be the target of a order under Title

III et al., or FISA, or both.

ȱŘŖŜȱǻȱȱ¢ȱȱȱȱ ȱ

ȱȱȱŗşŝŞǼȱ

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.”45 The law

enforcement wiretap statute has a similar provision for law enforcement orders, 18 U.S.C.

2518(4).

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 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. October 11, 2001).

ȱȱȱ¡ȱ

The subsection 224(b) exceptions provisions seem rather obviously applicable. The authority

continues in effect after March 10, 2006, with respect to any foreign intelligence investigation

Administration’s Draft Anti-Terrorism Act of 2001: Hearing Before the House Comm. on the Judiciary, 107th Cong.,

1 Sess. 56 (2001); H.Rept. 107-307 at 60.

ȱȱȱ

Řŝȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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. 107108, 115 Stat. 1402 (2001)(50 U.S.C. 1805(c)(1)(B)).

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 22-3.46

Critics claim section 206 is too sweeping;47 places unfair burdens upon those called upon to

provide assistance;48 and might raise constitutional concerns.49

Justice Department officials have testified that the FISA court had issued 49 orders authorizing use of the authority

under section 206 as of March 30, 2005, House Hearings, statement of James A Baker, Counsel for Intelligence Policy,

Office of Intelligence Policy and Review, United States Department of Justice, available on June 28, 2005 at

http://judiciary.house.gov/media/pdfs/baker042805.pdf.

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

(continued...)

ȱȱȱ

ŘŞȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

¢ȱ

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)).

ȱŘŖŝȱǻȱȱ ȱȱȱȬȱȱȱȱ

ȱȱȱȱȱ Ǽȱ

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

(...continued)

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”).

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”).

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 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”).

ȱȱȱ

Řşȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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).

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.

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. October 11, 2001).50 The Senate view ultimately prevailed, §207, P.L.

107-56, 115 Stat. 282 (2001).

ȱȱȱ¡ȱ

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 March 10, 2006, but otherwise

to expire on that date.

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

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”).

ȱȱȱ

řŖȱ

ȱ ȱȱǱȱȱȱȱȱ¡ȱȱȱřŗǰȱŘŖŖśȱ

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 nonU.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 Acthas 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.