The SAFE Acts of 2005: H.R. 1526 and S. 737--A Sketch
CRS Report for Congress
The SAFE Acts of 2005:
H.R. 1526 and S. 737 — A Sketch
Charles Doyle
Senior Specialist
American Law Division
Summary
Somewhat different SAFE Acts have been introduced in both the House and
Senate: S. 737, the Security and Freedom Enhancement Act of 2005 (introduced by
Senator Craig) and H.R. 1526, the Security and Freedom Ensured Act of 2005
(introduced by Representative Otter). Although the Senate bill is more detailed, they
address many of the same issues, most of which relate to the USA PATRIOT Act —
roving Foreign Intelligence Surveillance Act (FISA) wiretaps, delayed notification of
“sneak and peek” search warrants, library and similar exemptions from FISA tangible
item orders and communications related to national security letters, the definition of
“domestic terrorism,” and expansion of the sunset provisions of the USA PATRIOT
Act.
This report is an abridged version — without footnotes and citations — of CRS
Report RL32907, Security and Freedom Ensured Act of 2005 (SAFE Act)(H.R. 1526)
and Security and Freedom Enhancement Act of 2005 (SAFE Act)(S. 737): Section by
Section Analysis.
Section 1. Short Title: Section 1 of the bills contains their short titles, the “Security and
Freedom Ensured Act of 2005 (SAFE) Act” in the case of H.R. 1526; and “Security and
Freedom Enhancement Act of 2005” or “SAFE Act” in the case of S. 737.
Section 2. Limitation on Roving Wiretaps Under Foreign Intelligence Surveillance Act
of 1978: The Foreign Intelligence Surveillance Act (FISA) permits federal judges assigned
to serve on the Foreign Intelligence Surveillance Court to issue orders authorizing, for
foreign intelligence gathering purposes, electronic surveillance; physical searches; the use
of trap and trace devices and pen registers; and access to tangible items.
Subsection 1805(c) of FISA describes the specifications and directions for FISA
electronic surveillance orders. Before 9/11, FISA electronic surveillance orders specified
(1) the identity, if known, or the description of the target of the surveillance, (2) the nature
and location of the facilities or places at which the surveillance was directed, and (3) if
Congressional Research Service ˜ The Library of Congress
requested, the identity of communications providers, landlords and other person whose
assistance would facilitate execution of the order.
Section 206 of the USA PATRIOT Act temporarily altered this third feature to
permit a general command for third party assistance without identifying a specific person,
if the target of the order regularly changed telephones or meeting places or took other
evasive steps in order to thwart surveillance efforts. The intelligence authorization act for
2002 altered the second feature to require identification of the nature and location of
targeted facilities and places only if they were known. Thus, at least temporarily, FISA
surveillance orders may be issued that simply describe the target but do not otherwise
identify the target, the facilities or places to be targeted, or those communications
providers or others whose assistance will be commanded to facilitate execution of the
order.
Both the House and Senate bills amend subsection 1805(c) to require that FISA
surveillance orders identify either the target or the facilities or places targeted; orders
merely describing the target because the target’s identity is unknown must identify the
facilities or places targeted and orders that do not identify the facilities or places because
they are unknown must identify the target. If the facilities or places cannot be identified
in the order, both bills limit execution of a FISA surveillance order to times when the
target is present at the facility or place under surveillance.
Section 3. Limitations on Delayed Notice Search Warrants - In General: The Fourth
Amendment to the United States Constitution prohibits unreasonable searches and
seizures, U.S. Const. Amend. IV. The amendment does not apply when there is no
reasonable expectation of privacy with respect to the item seized, such as information or
other property in the possession of a third party for example. Yet where a reasonable
expectation of privacy exists and subject to certain exigent circumstances, the Fourth
Amendment requires officers executing a search warrant to knock and announce their
purpose before entering to execute the warrant. Prior to the USA PATRIOT Act, the
Federal Rules of Criminal Procedure which implement the amendment, instructed officers
to leave a notice of the search and an inventory of any items seized at the location where
the search occurred. The lower federal appellate courts were divided over whether failure
to provide notification should be treated as a violation of the rule or as a constitutional
violation; and they likewise could not agree on how long notification might be postponed
when exigent circumstances justified delayed notification.
Federal law permits delayed notification to customers of government access to their
communications stored with service providers — a situation under which there may well
be no judicially recognized reasonable expectation of privacy. The law limits delays to
instances where contemporaneous disclosure would have adverse consequences. The list
of adverse consequences includes factors traditionally recognized as exigent
circumstances for Fourth Amendment purposes (risk of injury or flight, of the destruction
of evidence, or of the intimidation of a potential witness) and two factors which probably
would not be thought to constitute exigent circumstances (seriously jeopardize an
investigation or unduly delay a trial). Section 213 of the USA PATRIOT Act amends 18
U.S.C. 3103a to permit delayed notification of the execution of search warrant or court
order for a reasonable time in presence of any of the adverse conditions listed in 18 U.S.C.
The two bills amend subsection 3103a(b) first to limit the grounds justifying delay
to those that can be considered exigent circumstances (injury, flight, destruction of
evidence, witness intimidation risks) and second to confine the period of delay to no more
than 7 days (with the possibility of 21-day extensions).
B. Reports: The bills direct the Attorney General to issue a public report every six
months documenting the number of notify postponements and extensions requested and
granted or denied, proposed 18 U.S.C. 3103a(c). The Senate bill also insists that the report
identify the nature of the crimes that have given rise to subsection 3103a(b) requests.
Section 4. Privacy Protections for Library, Bookseller, and Other Personal Records
Under Foreign Intelligence Surveillance Act of 1978 - In General: Before the USA
PATRIOT Act, FISA authorized judges and magistrates of the FISA court to issue orders
affording the Federal Bureau of Investigation (FBI) access to certain business records
during the course of gathering foreign intelligence information or investigating
international terrorism. Applications were to include “specific and articulable facts” for
a belief that the subject of the business records was a foreign power or the agent of a
foreign power. The orders could be addressed to any transportation common carrier,
public accommodation provider, storage facility or vehicle rental business, and recipients
could not disclose them except to the extent necessary to provide access to the records.
Section 215 of the USA PATRIOT Act temporarily rewrote this portion of FISA.
In the form scheduled to sunset on December 31, 2005, FISA court orders are available
for FBI access to “any tangible things (including books, records, papers, documents, and
other items)” without regard to whether they pertain to a foreign power or any of its
agents as long as access is sought to obtain foreign intelligence information (not
concerning a United States person) or to protect against international terrorism or
clandestine intelligence activities. Section 215 kept the nondisclosure feature and granted
recipients protection from civil liability for compliance with a FISA order.
Both bills restrict the temporary FISA tangible things access orders to instances
where there are specific and articulable reasons to believe that the records pertain to a
foreign power or one or more of its agents. The Senate bill alone provides that the order
may be no more sweeping than a grand jury subpoena duces tecum issued in the context
of an espionage or international terrorism investigation (i.e., it must yield to federally
recognized privileges and may not be unreasonable or oppressive). The Senate bill also
calls for the order to include notice of the recipient rights that the bill provides.
B. Oversight: Both bills add the House and Senate Judiciary Committees to the
Congressional authorities that the Attorney General must keep apprised of the extent of
the FBI’s use of the FISA access order authority, 50 U.S.C. 1862.
C. Amendments Unique to S. 737: The Senate bill adds: (1) exceptions and 180 day
time limits to the nondisclosure feature (with the possibility of 180 day extensions), (2)
a procedure to allow a recipient to quash or modify an order, and (3) use provisions
comparable to those that apply to the use of information generated by FISA surveillance
and physical search orders, proposed 50 U.S.C. 1861(d), (f), (g). H.R. 1526 has no
comparable provisions.
Section 5. (H.R. 1526: Privacy Protections for Computer Users at Libraries Under
National Security Authority/ S. 737: Procedural Protections for National Security Letters)
- In General: Four statutes vest federal intelligence officials with the power to demand
production of certain information directly rather than invoke the power of a FISA court
judge to secure access. These national security letter statutes are (1) 18 U.S.C. 2709 (FBI
request to wire or electronic communications service providers for customer name,
address, length of service, and local and long distance toll billing records); (2) 12 U.S.C.
(3) 15 U.S.C. 1681u (FBI request to consumer reporting agencies for consumer name,
address, former address, places of employment, former places of employment, and names
and addresses of financial institutions with whom a customer has an account); and (4) 15
U.S.C. 1681v (government agency request to consumer reporting agencies for consumer
and all other information in the agency’s files).
Although they vary somewhat, these statutes generally have no explicit enforcement
mechanism nor any means for a recipient to have a request modified or set aside, bar
disclosure by recipients of the requests, and have no uniform provisions concerning use
of the information provided in response to the request. Section 505 of the USA
PATRIOT Act amended three of the four provisions (18 U.S.C. 2709, 12 U.S.C. 3414,
15 U.S.C. 1681u) and section 358 created the fourth (18 U.S.C. 1681v). Each of the
amendments (1) made it clear that the request did not have to come from FBI headquarters
but could be issued by any of the agents in charge of the various FBI field offices; (2)
substituted a relevancy issuance standard for the earlier reason to believe standard; (3)
dropped the requirement that the records sought pertain to a foreign power or its agents;
and (4) asserted that access could not be sought in connection with an investigation based
solely on an American’s exercise of his First Amendment rights. In a case now on appeal,
one federal district court found that the manner of exercising the national security letter
authority under 18 U.S.C. 2709 violated both the Fourth and the First Amendments, the
Fourth because of the want of judicial supervision or review and the First because of the
facially all encompassing, permanent form of the gag order.
H.R. 1526: The bills treat the national security letter statutes differently. H.R. 1526
simply exempts libraries from the coverage of 18 U.S.C. 2709. Later in the bill, it adds
section 505 of the USA PATRIOT Act with its amendments to the national security letter
statutes (18 U.S.C. 2709, 12 U.S.C. 3414, and 15 U.S.C. 1681u) to the list of USA
PATRIOT Act provisions that expire on December 31, 2005.
S. 737: The Senate makes no such addition to the list of terminating sections nor
does it exempt libraries per se from any of national security letter statutes. Instead it
rewrites each of the statutes in much the same way it rewrites the FISA access order
provisions. Within each of the national security letter statutes, it (1) reestablishes the
demand that the information sought be based on specific and articulable facts that suggest
that the information sought pertains to a foreign power or one or more of its agents; (2)
sets a 90 day time limit for the gag orders based on exigent circumstances (with the
possibility of 180 day extensions available from the court on the same basis); (3) permits
recipients to challenge both the request and gag orders in court; (4) holds the letters to
same standards that apply to grand jury subpoenas duces tecum issued in espionage or
international terrorism cases (i.e., they must yield to federally recognized privileges and
may not be unreasonable or oppressive); (5) explicitly permits disclosure to those
necessary to comply with the request and to the recipient’s attorney; and (6) establishes
a procedure for use and suppression of evidence generated by the letters.
Section 6. Modification of Definition of Domestic Terrorism (H.R. 1526; Section 7 in S.
737): Federal law employs two terrorism-related definitions fairly extensively. The first
defines “federal crimes of terrorism” by listing a series of specific federal offenses likely
to be committed for terrorist purposes, 18 U.S.C. 2332b(g)(5)(text is appended). The
second defines “domestic terrorism” generically rather than by reference to any specific
federal crime, 18 U.S.C. 2331(5):
As used in this chapter . . . (5) the 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 kidnapping; and (C) occur primarily within the territorial
jurisdiction of the United States.
Neither domestic terrorism or a federal crime of terrorism is a separate crime. They
are used for purposes of cross reference. Thus for example, a federal crime of terrorism
as defined in 18 U.S.C. 2332b(g)(5)(B) that involves the risk of serious injury to another
person is not subject to the usual statute of limitations and may be prosecuted at any time.
Similarly, property derived from and used to facilitate international or domestic terrorism
as defined by 18 U.S.C. 2331 is subject to confiscations.
Both bills amend 18 U.S.C. 2331(5) so as to merge the two definitions, “As used in
this chapter . . . (5) the term ‘domestic terrorism’ means activities that — (A) involve acts
dangerous to human life that constitute a Federal crime of terrorism (as that term is
defined in section 2332b(g)(5) of this title); and (B) occur primarily within the territorial
jurisdiction of the United States.” H.R. 1526 contains an additional provision that
emphasizes that nothing in section 2331 should be construed to preclude enforcement of
state terrorism laws; S. 737 has no comparable provision.
Section 6. (S. 737 only) Privacy Protections for Pen Registers and Trap and Trace
Devices - In General: Trap and trace devices and pen registers are essentially surreptitious
“caller id” devices that track the source and destination of incoming and outgoing
telephone calls to and from a particular telephone. The Supreme Court has held that their
use does not offend any Fourth Amendment protected expectation of privacy. Federal law
contains procedures under which authorities may secure judicial approval for the
installation and use of trap and trace devices and pen registers in both a law enforcement
and an intelligence gathering (FISA) context.
Section 216 and 214 of the USA PATRIOT Act amended the law enforcement and
FISA procedures to apply to e-mail and other forms of Internet and electronic
communications. The law enforcement amendment requires a report to the issuing court
on the specifics on the use of the devices in connection with an Internet communication.
The FISA amendment precludes use of the authority in connection with an investigation
predicated solely on the exercise of an American target’s First Amendment rights. The
FISA amendment expires on December 31, 2005; the law enforcement amendment does
not.
H.R. 1526: Section 7 of the House bill adds section 216, the law enforcement
amendment, to the list of USA PATRIOT Act sections that expire on December 31, 2005.
S. 737: The Senate bill amends both the FISA and the law enforcement procedure
to require applicants to include a statement of the specific and articulable facts that give
rise to their belief that installation and use of the devices will produce evidence relevant
to a criminal investigation. It expands the annual law enforcement reporting requirement
to include more specific information concerning the use of the devices and directs that
report be made publicly. And it establishes a new notice provision in the law enforcement
procedure for the benefit of those interests are implicated by use of the device.
Section 7. (H.R. 1526 only) Extension of Patriot Sunset Provision - A. In General:
Section 224 of the USA PATRIOT Act creates an expiration date (December 31, 2005)
for the sections found in Title II of the act, but exempts from termination several
including sections 213 (delayed notification of the execution of search warrant (sneak and
peek warrants)), 216 (use of trap and trace devices and pen registers for law enforcement
purpose), 219 (nation-wide service of terrorism search warrants). H.R. 1526 removes the
exemption for these three sections so that they too expire on December 31, 2005. It also
marks section 505 (national security letter amendments) for expiration at that time.
Although it has no similar provision, S. 737 addresses many of the same concerns,
as noted earlier, in section 3 (relating to section 213 and limiting the justifications of
delayed notification to exigent circumstances and establishing 7-day and 21-day caps for
the initial period of delay and any subsequent extensions); in section 6 (relating to section
216 and providing for participant notice in law enforcement trap and trace device and pen
register cases; public reports on use of the authority; and presentation of the facts giving
specific and articulable justification for the orders); and in section 5 (relating to section
Boundless Terrorist Search Warrants: In most instances federal judges may only
issue search warrants to be executed in their own judicial districts, but in cases of
international or domestic terrorism section 219 of the USA PATRIOT Act allows judges
in any district where related activities have occurred to issue search warrants that may be
executed within or outside the district. Under H.R. 1526, section 219 expires on
December 31, 2005.
Section 8. (S. 737 only) Public Reporting of the Foreign Intelligence Surveillance Act of
amended FISA directing the Attorney General to report — in a manner consistent with
the protection of national security — to the Congressional Judiciary and Intelligence
Committee semi-annually on the extent of FISA use, interpretation of the act by the FISA
court, and copies of the FISA court opinions, 50 U.S.C. 1871.
S. 737 amends section 1871 to require that the reports be made public, confines the
instruction that the report be made in a manner consistent with the protection of national
security to information relating to FISA court opinions, but permits the Attorney General
to redact for the protection of national security portions of the publicly released opinions.
H.R. 1526 has no comparable provisions.