USA Patriot Act Sunset: Provisions That Were to Expire on December 31, 2005
Prepared for Members and Committees of Congress
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
The consequences of sunset are not the same for every expiring section. In some instances the
temporary provision has been replaced with a permanent one; in some, other provisions have
been made temporary by attachment to an expiring section; in still others, the apparent impact of
termination has been mitigated by related provisions either in the act or elsewhere.
The temporary provisions are: sections 201 (wiretapping in terrorism cases), 202 (wiretapping in
computer fraud and abuse felony cases), 203(b) (sharing wiretap information), 203(d) (sharing
foreign intelligence information), 204 (Foreign Intelligence Surveillance Act (FISA) pen
register/trap & trace exceptions), 206 (roving FISA wiretaps), 207 (duration of FISA surveillance
of non-United States persons who are agents of a foreign power), 209 (seizure of voice-mail
messages pursuant to warrants), 212 (emergency disclosure of electronic surveillance), 214 (FISA
pen register/ trap and trace authority), 215 (FISA access to tangible items), 217 (interception of
computer trespasser communications), 218 (purpose for FISA orders), 220 (nationwide service of
search warrants for electronic evidence), 223 (civil liability and discipline for privacy violations),
and 225 (provider immunity for FISA wiretap assistance); and in the Intelligence Reform and
Terrorism Prevention Act, section 6001 (“lone wolf” FISA orders).
The unimpaired provisions of Title II are: sections 203(a)(sharing grand jury information),
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).
Introduc tion ............................................................................................................................... 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
Infor mation) ................................................................................................................... .. 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
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
(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
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).
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 pre-
sunset circumstances whose criminality is determined in a post-sunset investigation? Or does the
phrase also include post-crimes that evolved out of pre-sunset circumstances which themselves
constituted neither crimes nor elements of a crime? As a general rule, when Congress uses
ordinary words, it is presumed to have intended them to have their commonly understood 1
meaning. The word “potential” usually contemplates the incomplete, the unfulfilled, the 2
undeveloped, or the unawakened possibility, rather than the suspected or uncertain possibility.
1 National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 109-110 (2002), quoting, Walters v. Metropolitan Ed.
Enterprises, Inc., 519 U.S. 202, 207 1997)(“In the absence of an indication to the contrary, words in a statute are
assumed to bear their ordinary, contemporary, common meaning”).
2 “[P]otential, adj. Capable of coming into being; possible,” BLACK’S LAW DICTIONARY, 1188 (7th ed. 1999);
“potential. adj. [ME potencial, LL potentialis potential, powerful, fr. LL potential dynamis, state of that which is not
yet fully realized & L potentia potency] 1a. existing in possibility: having the capacity or a strong possibility for
development into a state of actuality. . . b. having the capacity for acting or being acted upon and hence for undergoing
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 3
term to describe possible past offenses in some cases, and to describe possible future offenses in 4
others. 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.
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 5
enforcement interceptions, 18 U.S.C. 2510-2520 (Title III). 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
change . . ..” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED, 1775
(1986)(phonetic pronunciation guide omitted).
3 E.g., United States v. Hart, 324 F.3d 575, 579 (8th Cir. 2003)(emphasis added)(“Hart provided his corporation’s tax
identification number to Plaza Motors, and Plaza Motors reported all its commission payments to the government on
Form 1099s . . . Neither Hart nor Midtown Motors filed tax returns for the income reported by Plaza Motors. Thus, the th
government clearly had notice of a potential offense”); United States v. Rivera, 906 F.2d 319, 322 (7 Cir.
1990)(emphasis added)(“The court below found that there were three potential offenses that needed investigation or
citation [when officers stopped Rivera’s car]: The material obstruction, Rivera’s erratic driving, and his passenger’s
(later discovered) nonwearing of a seat belt”).
4 E.g., Screws v. United States, 325 U.S. 91, 157 (1945)(Roberts, J., dissenting)(emphasis added)(“By . . . establishing
as federal crimes violations of the vast, undisclosed range of the Fourteenth Amendment, this Court now creates new
delicate and complicated problems for the enforcement of the criminal law. The answers given to these problems, in
view of the tremendous scope of potential offenses against the Fourteenth Amendment, are bound to produce a
confusion detrimental to the administration of criminal justice”); Wyner v. Struhs, 254 F.Supp.2d 1297, 1302 (S.D.Fla.
2003)(emphasis added)(“Does the regulation [against nudity on a state beach] serve a significant government interest? .
. . That interest in protecting the public from the potential offense of nudity meets this standard”).
5 18 U.S.C. 2510-2522 (chapter 119 of title 18 of the United States Code) is often referred to as Title III, because it was
originally enacted as Title III of the Omnibus Crime Control and Safe Streets Act of 1968, P.L. 90-351, 82 Stat. 212
(1968). Even though Title III encompasses wire, oral and electronic communications it is often referred to as the
“wiretap” statute as a matter of convenience.
demanding, although it generally requires a court order, warrant, or subpoena, 18 U.S.C. 2701-
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.
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
• 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 thst
Judiciary (Hearing), 107 Cong., 1 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,
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
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 6
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”).
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 7
Work (Report), 26 (July, 2004). 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 8
twice. 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 9
and was subsequently convicted of numerous explosives and firearms offenses.” The section 202 10
case involved “a computer fraud investigation that broadened to include drug trafficking.”
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 11
state law enforcement wiretapping practices. 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. 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),
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
7 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.
8 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 thst
Judiciary (House Hearings), 109 Cong., 1 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.
11 S.Rept. 90-1097, at 98-9 (1967).
12 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.
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 13
(Colombian or otherwise) or criminal events (past, present or future).
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
• Section 202 authority has been in one case that eventually broadened into a drug
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.
13 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”).
The subsections use the same definitions for foreign intelligence, counterintelligence and foreign
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—
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 14
were uncertain, 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.
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.
14 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”).
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, 15
P.L. 107-296, §896, 116 Stat. 2257 (2002) (18 U.S.C. 2517(7),(8)).
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. 403-16
15 “(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).
16 “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).
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 17
performance of their duties, particularly in terrorism cases. 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 18
support and supply a foreign terrorist organization. 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, 19
such as MI-5, but would arguably not be allowed to share that same information with the CIA.”
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 20
the use of criminal law enforcement powers for purposes of an “intelligence probe.”
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 2122
and law enforcement officials and in terrorism cases with intelligence authorities. The
17 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
18 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 thst
Judiciary (House Hearings), 109 Cong., 1 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
19 Sabin statement citing 18 U.S.C. 2517(7) which permits sharing with foreign investigative and law enforcement
20 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.
21 “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).
22 “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
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 23
intelligence services equally well. Yet it may not be an apt description of either.
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 24
because it asserted in the more serious cases it was unnecessary.
Justice Department officials have identified a number of instances where law enforcement
authorities have shared information with foreign intelligence officials in reliance on section
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
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).
23 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.
24 146 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”).
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.
Subsection (b) permits the disclosure of wiretap-generated foreign intelligence information to
federal law enforcement, intelligence, protective, immigration and military personnel for official
• 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
• A prior Justice Department letter claimed the existence of authority elsewhere to
share wiretap generated information in the presence of an overriding national
• Subsection (d) permits the disclosure of foreign intelligence information
discovered in the course of a federal criminal investigation notwithstanding any
• It is unclear what if any, legal impediments exist.
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 26
such activities, 18 U.S.C. 2511(2)(f).
25 “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
26 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).
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).
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
register proscriptions do not preclude the exercise of authority to use trap and trace devices and
pen registers to gather foreign intelligence information.
- 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
At one time, at least some courts felt that authorities needed a wiretap order rather than a search th
warrant to seize unretrieved voice mail, United States v. Smith, 155 F.3d 1051 (9 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.
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 27
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”).
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.
The section permits use of a search warrant to seize unopened voice mail held by a service
• Previous requirements of a wiretap order were slow, burdensome, and not
compatible with the manner in which unopened, provider-stored e-mail was
• 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.
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, 28
at 72. The House and Senate proposals contained essentially the same provision, §110, H.R.
28 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.”
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
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.
• 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
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.”
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
• The same benefits might be available after sunset through the use of a search
• There are apparently no reported instances of the section’s use for its intended
purposes, protection of the nation’s critical infrastructure.
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.
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 29
(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.
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.
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 30
permanent amendment to 18 U.S.C. 2520(d)(3), §225(e), P.L. 107-296, 116 Stat. 2157 (2002).
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 cyber-
terrorists and others to ask law enforcement officers to monitor trespassers on their systems.
Section 217 thus places cyber-intruders on the same footing as physical intruders: hacking
victims can seek law-enforcement assistance to combat hackers just as burglary victims can
invite police officers into their homes to catch burglars. Report at 28.
107-236, at 5 (2001).
30 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”).
The Department’s comments in Myths are more expansive and do include a general statement of
The law has always recognized the right of landowners to ask law enforcement to help
expel people who illegally trespass on their property. Section 217 made the law technology-
neutral, placing cyber-intruders on the same footing as physical intruders. Now, hacking
victims can seek law-enforcement assistance to combat hackers, just as burglary victims have
been able to invite officers into their homes to catch burglars. Prior to the enactment of the
USA PATRIOT Act, the law prohibited computer service providers from sharing with law
enforcement that hackers had broken into their systems. Computer operators are not required
to involve law enforcement if they detect trespassers on their systems. Section 217 simply
gives them the option of doing so. Section 217 preserves the privacy of law-abiding
computer users. Officers cannot agree to help a computer owner unless (1) they are engaged
in a lawful investigation; (2) there is reason to believe that the communications will be
relevant to that investigation; and (3) their activities will not acquire the communications of
non-hackers. This provision has played a key role in a number of terrorist investigations,
national-security cases, and investigations of other serious crimes. Section 217 is extremely
helpful when computer hackers launch massive denial of service attacks - which are designed
to shut down individual websites, computer networks, or even the entire Internet. The
definition of computer trespasser does not include an individual who has a contractual
relationship with the service provider. Thus, for example, America Online could not ask law
enforcement to help monitor a hacking attack on its system that was initiated by one of its
own subscribers. Myths, at §217 (emphasis added).
The section’s solution does not seem to match the statement of the problem it was purportedly
designed to address. It does not remove intruders or prevent their entry; it merely permits
eavesdropping on them while they are trespassing. There is no clear explanation by word or
example of why this is preferable or effective. The Department indicated during oversight 31
hearings that authority under the section had been use “comparatively rarely.” They have 32
subsequently offered its use in an identify theft investigation by way of example.
Some critics have expressed the concern that the provision might be used to circumvent the 33
safeguards and oversight that attends Title III wiretaps.
31 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).
32 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.
33 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
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
• 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.
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.
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”).
But for the addition of a technical conforming amendment, section 220 passed untouched through 34
the legislative process from request to presidential signature. 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.
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 35
cases of international or domestic terrorism as defined in 18 U.S.C. 2331.
34 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).
35 “[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).
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 36
has proved invaluable in several terrorism investigations, such as the Virginia Jihad and the 37
“shoebomber” cases . . . as well as time-sensitive criminal investigations, such as [one] 38
involving a dangerous fugitive. . .. 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 39
inefficient use of investigators’, prosecutors’, and judges’ time.”
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 40
from district courts throughout the country. 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.
36 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).
37 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. st
Reid, 369 F.3d 619 (1 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.
38 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.
39 House Hearings, statement of Attorney General Alberto R. Gonzales, available on June 28, 2005 at
40 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”).
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.
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 41
communications lawfully intercepted under a court order.
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.
41 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).
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
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).
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 42
jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law.”
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
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
42 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).
point more strongly to a different conclusion, this view is compatible with the general rule that 43
authority to sue the United States should be narrowly construed.
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 44
this section permanent.
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
• The Attorney General has urged Congress to make section 223 permanent.
• Section 223 might serve as a disincentive to information sharing.
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.
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
43 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).
44 House Hearings, statement of Attorney General Alberto R. Gonzales, available on June 28, 2005 at
from the fact that an international terrorist may appropriately be the target of a order under Title
III et al., or FISA, or both.
Section 206 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, 45
Internet accounts, etc, just prior to important meetings or communications.” The law
enforcement wiretap statute has a similar provision for law enforcement orders, 18 U.S.C.
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.
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
45 Administration’s Draft Anti-Terrorism Act of 2001: Hearing Before the House Comm. on the Judiciary, 107th Cong.,
1st Sess. 56 (2001); H.Rept. 107-307 at 60.
initiated prior to that time. There have been no amendments related to section 206 since its
enactment. A subsequent amendment (which does not sunset) to a different FISA section,
however, permits roving surveillance by requiring a FISA order to identify the location and
facilities subject to surveillance only if they are known at the time of the application, P.L. 107-
The Justice Department’s Report describes section 206 and offers a hypothetical by way of
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 46
FISA court just to obtain a new order containing the new provider’s name. Report at 22-3.
Critics claim section 206 is too sweeping;47 places unfair burdens upon those called upon to 4849
provide assistance; and might raise constitutional concerns.
46 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
47 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
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.
• Comparable authority has existed under Title III (18 U.S.C. 2518(4)) for some
• 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
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
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”).
48 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”).
49 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”).
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. 50
Rec. S10607 (daily ed. October 11, 2001). The Senate view ultimately prevailed, §207, P.L.
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
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
50 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”).
having to seek renewal of such authority from the court. That limitation required federal
authorities to waste valuable time and resources by frequently renewing court orders, even
when there was no question about the legal sufficiency of a particular case. Section 207 of
the USA PATRIOT Act now permits the FISC to authorize physical searches of certain
agents of foreign powers (including U.S. persons) for 90 days, and authorizes longer periods
of searches and electronic surveillance for certain categories of foreign powers and non-U.S.
persons who are agents of foreign powers. In particular for foreign governments and other
foreign powers, non-U.S. person officers or employees of certain foreign powers, and non-
U.S. person members of international terrorist groups, initial orders authorizing searches and
surveillance may be for periods of 120 days, and renewal orders may extend for periods of
one year. While the details of FISA operations are classified, the FISC has authorized 90-day
and year-long surveillance of foreign powers and their agents pursuant to section 207 of the
USA PATRIOT Act. Therefore, the 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.
Under FISA before passage of the act, FISA wiretap orders with the agent of a foreign power as
their target had a maximum duration of 90 days, and could be extended in 90 day increments, 50
U.S.C. 1805(e)(2000 ed.). FISA physical search orders and extensions were good for no more
than 45 days (but up to one year if a foreign power was the target), 50 U.S.C. 1824(d)(2000 ed.).
Section 207 amends the time lines. FISA wiretap orders relating to the agent of foreign power
may remain in effect for up to 120 days and may be extended at one year intervals, 50 U.S.C.
1805(e). As a general rule, FISA physical search orders and extensions may be authorized for 90
days (unless they target a foreign power), but orders with an agent of a foreign power as their
target may be issued for up to 120 days with extensions for up to one year, 50 U.S.C. 1824(d).
This section essentially deals with the regularity of judicial supervision. The Deputy Attorney
General has pointed out that the section saved the Office of Intelligence Policy and Review
approximately 60,000 hours of attorney time in processing applications, an estimate that does 51
include time that might have had to be expended by FBI agents and attorneys. Critics might 52
argue more not less supervision is appropriate given the increased use of FISA and of the FISA
court’s remarkably outspoken criticism of the accuracy, candor and sufficiency of presentations to 53
51 House Hearings, statement of Deputy Attorney General James B. Comey, available on June 28, 2005 at
52 The FBI reported an 85% increase in FISA applications from 2001 to 2003, The FBI’s Counterterrorism Program
Since September 2001: Report to the National Commission on Terrorist Attacks upon the United States, 64 (April 14,
2004). Annual reports to Congress on the number of FISA surveillance and physical search applications, beginning
with calendar year 1995, appear on the Department of Justice’s website, available on Feb. 11, 2005 at
53 In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F.Supp.2d 611, 620-21 (FISC
2002)(“In September 2000, the government came forward to confess error in some 75 FISA applications related to
major terrorist attacks directed against the United States. The errors related to misstatements and omissions of material
facts. . .. In November of 2000, the Court held a special meeting to consider the troubling number of inaccurate FBI
affidavits in so many FISA applications. After receiving a more detailed explanation from the Department of Justice
about what went wrong, but not why, the Court decided not to accept inaccurate affidavits from FBI agents whether or
not intentionally false. One FBI agent was barred from appearing before the Court as a FISA affiant . . . In March of
2001, the government reported similar misstatements in another series of FISA applications. . .”).
Section 207 extends the permissible duration of FISA surveillance and physical search orders and
extensions, 50 U.S.C. 1805(e), 1824(d).
• The Justice Department sees section 207 as a time saver that allows for more
productive allocation of Department and judicial resources.
• Critics might argue more not less judicial supervision is called for.
Section 214 makes several adjustments in the FISA pen register/trap and trace device procedures.
FISA once permitted applications for a FISA pen register or trap and trace device order for
telephone communications in order to acquire information relevant to a foreign intelligence or
international terrorism investigation and upon the additional certification that the communications
monitored would likely be either (1) those of an international terrorist or spy (“individual . . .
engaged in international terrorism or clandestine intelligence activities that . . . involve a violation
of [U.S.] criminal laws”) or (2) those of a foreign power or its agent relating to the criminal
activities of an international terrorist or spy, 50 U.S.C. 1842(a)(1), (c)(2), (c)(3), (i)(2000 ed.).
Section 214 opens the FISA pen register/trap and trace device procedure to both wire and
electronic communications (e.g., telephone, e-mail, Internet communications), 50 U.S.C.
1842(d)(2)(A). It drops the requirement that the communications be those of international
terrorists or spies or be related to their activities, 50 U.S.C. 1842(c)(2). It adds the caveat that any
investigation of a U.S. person for which a order is secured “to protect against international
terrorism or clandestine intelligence activities” may not be conducted based solely on activities
protected by the first amendment to the Constitution, 50 U.S.C. 1842(a)(1), (c)(2). It adds this
same caveat with respect to emergency FISA pen register or trap and trace device use, 50 U.S.C.
The Administration’s original request sought to make pen register and trap and trace device
procedures more compatible:
When added to FISA two years ago, the pen register/trap and trace section was intended
to mirror the criminal pen/trap authority defined in 18 U.S.C. §3123. The FISA authority
differs from the criminal authority in that it requires, in addition to a showing of relevance,
an additional factual showing that the communications device has been used to contact an
“agent of a foreign power” engaged in international terrorism or clandestine intelligence
activities. This has the effect of making the FISA pen/trap authority much more difficult to
obtain. In fact, the process of obtaining FISA pen/trap authority is only slightly less
burdensome than the process for obtaining full electronic surveillance authority under FISA.
This stands in stark contrast to the criminal pen/trap authority, which can be obtained quickly
from a local court, on the basis of a certification that the information to be obtained is
relevant to an ongoing investigation. The amendment simply eliminates the “agent of a
foreign power” prong from the predication, and thus makes the FISA authority more closely
track the criminal authority. §155, H.R.—, Hearings at 57; see also, §155, H.R. 2975,
H.Rept. 107-236 at 61.
The Senate added the instruction that denies pen register/trap and trace device authority in the
case of an investigation predicated entirely upon its target’s exercise of first amendment rights,
§214, S. 1510, 147 Cong. Rec. S10608 (daily ed. October 11, 2001).
Except for on-going investigations, the FISA pen register/trap and trace device provisions revert
to form on March 10, 2006. No relevant amendments have been enacted since passage of the act.
The streamlined authority apparently has been used in the investigation of suspected al Qaeda
agents in this country:
The USA PATRIOT Act also has updated federal pen-trap law under FISA by making
the legal requirements for obtaining court permission for pen/trap orders in international
terrorism investigations more similar to the standards that apply in ordinary criminal cases.
Previously, FISA-authorized pen/trap orders were available in terrorism investigations only
if the suspect was, or was communicating with an “agent of a foreign power.” FISA thus
prevented officials from using pen/trap devices in many settings that might have revealed
information relevant to a foreign intelligence investigation. Under section 214 of the act,
however, the government now can obtain a pen/trap order when the information likely to be
obtained is foreign intelligence information or is relevant to investigations intended to
protect against international terrorism or “clandestine intelligence activities.” While specific
examples of the use of pen/trap devices pursuant to section 214 remain classified, the
Department has utilized section 214 on several occasions in international terrorism
investigations, including investigations of suspected al Qaeda operatives in the United States,
and the streamlined pen/trap authority has made it easier to identify additional subjects in
terrorism investigations. Report, at 25-6.
Critics might argue that streamlining the FISA pen register/trap and trace device procedure is
particularly ill-advised. First, the procedure is already subject to a minimum of judicial
supervision; orders are issued upon the FBI’s certification of relevance not upon the court’s 54
finding of relevance; unlike wiretap orders, there is no requirement that the targets of the order
be notified after the order expires unless the results are to be used as evidence in official 55
proceedings; unlike comparable orders in the criminal sphere, there is no requirement of a 56
subsequent report to the court of the particulars of execution; criminal orders call for judicial re-57
examination every 60 days, FISA orders every 90 days. Second, the nature and extent of the
expanded authority is substantial. Where orders once permitted authorities to monitor the
identification of parties to telephone conversations over particular instruments, they now permit 58
authorities to monitor Internet use. Third, in terrorism cases officials presumable enjoy adequate
54 50 U.S.C. 1842.
55 Compare, 50 U.S.C. 1845, with, 18 U.S.C. 2517(8)(d).
56 Compare, 50 U.S.C. 1842, with, 18 U.S.C. 3123(a)(3).
57 Compare, 50 U.S.C. 1842(e), with, 18 U.S.C. 3123(c).
58 Whitehead & Aden, at 1106 (“These expanded powers to monitor telecommunications [in sections 214 and 216] are
particularly prone to abuse in the Internet age, since pen register and trap and trace orders now disclose not only
standard telephone numbers called by or dialing in to a subject, but also Internet URLs and dedicated lines for data
transmission. The ability to monitor Internet sites visited by the subject to a search, in the absence of a showing
law enforcement authority under section 216 of the act which does not expire. Some critics find 59
the section disquieting for constitutional reasons.
Section 214 recasts FISA pen register/trap & trace order procedures so that they apply to
electronic (e-mail and other Internet communications as well as to telephone communications),
• The change is comparable in some respects to a similar enlargement for law
enforcement in §216 which does not expire, 18 U.S.C. 3123(b), 3127(4)).
• The section precludes exercise of emergency authority or issuance in connection
with an investigation based solely on the exercise of first amendment rights.
• The section is constitutionally permissible, but requires a court order nonetheless
and is first amendment sensitive.
• Critics might argue that the expansion to cover Internet use is dramatic; that the
FISA expansion lacks some of the safeguards found in its law enforcement
counterparts; and that in terrorism cases the authority available to law
enforcement officials under section 216 of the act which does not expire should
FISA originally authorized a FISA court order (in a terrorism investigation or an effort to gather
foreign intelligence information) for FBI access to the business records of hotels, motels, car and
truck rental agencies, and storage rental facilities, 50 U.S.C. 1862 (2000 ed.). An application for
such an order had to assert that there were “specific and articulable facts giving reason to believe
that the person to whom the records pertain [was] a foreign or an agent of a foreign power,” 50
probable cause or even reasonable suspicion, is an unprecedented expansion of federal surveillance powers”); National
Security at What Price?: A Look into Civil Liberty Concerns in the Information Age under the USA PATRIOT Act of
2001 and a Proposed Constitutional Test for Future Legislation, 12 CORNELL JOURNAL OF LAW AND PUBLIC POLICY
447, 460 (2003)(“The effect of pen registers on personal rights is that pen registers can capture a great deal more
information than merely a telephone number. Not requiring probable cause for these devices rested on judicial
reasoning that neither the trap and trace nor the pen register devices, could, prior to the USA PATRIOT Act capture the
substantive material of the communication in question. the USA PATRIOT Act’s expansion of and consolidation of the
definitions of pen registers and trap and trace devices endanger the original distinction upon which the lower level of
scrutiny was justified. The expanded definition would now seem to cover Web surfing, e-mail messages, electronic fax
distributions, and any other electronic form of communication. The FBI justifies these definitional expansions by
interpreting Web traffic as substantially similar to telephone conversations. Despite the substantial differences,
including the vast amount of information available from an e-mail routing protocol that cannot be gleaned from
listening to a phone conversation, this issue has never been litigated and remains unresolved”).
59 EPIC Report (“The amendment significantly eviscerates the constitutional rationale for the relatively lax
requirements that apply to foreign intelligence surveillance. That laxity is premised on the assumption that the
Executive Branch, in pursuit of its national security responsibilities to monitor the activities of foreign powers and their
agents should not be unduly restrained by Congress and the courts. The removal of the ‘foreign power’ predicate for
pen register/trap and trace surveillance upsets that delicate balance”).
U.S.C. 1862(b)(2)(2000 ed.). Section 215 expands the authority to include not only business
records but any tangible item regardless of the business or individual holding the item and upon
the simple assertions that the records are sought in an effort to obtain foreign intelligence (not
based solely on the first amendment protected activities of a U.S. person) or in a terrorism 60
investigation, 50 U.S.C. 1861.
Section 215 began as a request for administrative subpoena authority to replace a more narrowly
drawn FISA procedure:
The “business records” section of FISA (50 U.S.C. §§ 1861 and 1862) requires a formal
pleading to the Court and the signature of a FISA judge (or magistrate). In practice, this
makes the authority unavailable for most investigative contexts. The time and difficulty
involved in getting such pleadings before the Court usually outweighs the importance of the
business records sought. Since its enactment, the authority has been sought less than five
times. This section would delete the old authority and replace it with a general
“administrative subpoena” authority for documents and records. This authority, modeled on
the administrative subpoena authority available to drug investigators pursuant to Title 21,
allows the Attorney General to compel protection of such records upon a finding that the
information is relevant. §156, H.R.—, Hearings, at 57.
The House Judiciary Committee converted the request into an amendment of the earlier FISA
procedure. In doing so it preserved at least a modicum of judicial supervision while acceding to 61
the Administration’s request for more expansive authority.
Section 215 expires on March 10, 2006, except with respect to on-going foreign intelligence
investigations, at which point the law reverts to the hotel-motel-car-rental business records
procedure that the predates the act. There are no subsequent amendments to the act or to FISA
that alter the consequences of that reversion, but the impact of expiration may be mitigated by
changes in the law governing “national security letters” that provide access to a wider range of
business records after sunset.
Provisions in the Right to Financial Privacy Act, the Fair Credit Reporting Act, and chapter 121
of title 18 of the United States Code, authorize the FBI when investigating international terrorism
or clandestine intelligence activities to request access to business records held by banks, credit
report agencies, and communications carriers, 12 U.S.C. 3414, 15 U.S.C. 1681, 18 U.S.C. 2709.
60 The act itself limited authority under section 215 to cases involving “investigations to protect against international
terrorism and clandestine intelligence activities,” but a later intelligence authorization act amended the section to
include “investigations to obtain foreign intelligence information not concerning a United States person,” P.L. 107-108,
§314(a)(6), 115 Stat. 1402 (2001).
61 “The Administration had sought administrative subpoena authority without having to go to court. Instead, section
156 amends title 40 U.S.C. §1861 by providing for an application to the FISA court for an order directing the
production of tangible items such as books, records, papers, documents and other items upon certification to the court
that the records sought are relevant to an ongoing foreign intelligence investigation. The amendment also provides a
good faith defense for persons producing items pursuant to this section which does not constitute a waiver of any
privilege in any other proceeding,” H.Rept. 107-236, at 16 (emphasis added).
Section 374 of the 2004 intelligence authorization act amends the Right to Financial Privacy Act
to give the FBI access to business records held not only by banks, but by credit card companies,
car dealers, real estate agencies, stock brokers, jewelers, and certain other business occasionally
marked by large cash transactions, P.L. 108-177, 117 Stat.2628 (2003) (amending 12 U.S.C. 3414
to the make the definition of “financial institution” found in 31 U.S.C. 5312 applicable).
Section 215 has been among the more hotly debated sections of the act. Librarians and library
associations have been among its more vocal critics. The Justice Department has responded that:
The library habits of ordinary Americans are of no interest to those conducting terrorism
investigations. However, historically terrorists and spies have used libraries to plan and carry
out activities that threaten our national security . . . Obtaining business records is a long-
standing law enforcement tactic. Ordinary grand juries for years have issued subpoenas to all
manner of businesses, including libraries and bookstores, for records relevant to criminal
inquiries. . .. Section 215 authorized the FISA court to issue similar orders in national
security investigations. It contains a number of safeguards that protect civil liberties. Section
215 requires FBI agents to get a court order. . . Section 215 has a narrow scope. . . It cannot
be used to investigate ordinary crimes, or even domestic terrorism. Section 215 preserves
First Amendment rights. . .. Section 215 provides for congressional oversight. Myths at §215.
Section 215 authority appears to have been relatively little used. Justice Department officials have
testified that 35 orders have been issued under section 215 authority, none of which involved 62
library, book store, medical, or gun sale records. At the same time they argue against the 63
creation of a safe haven in public services that terrorists have been known to use.
Critics decry the section’s expansion beyond agents of a foreign power as well as its secrecy 6465
provisions. They also question its constitutionality.
62 House Hearings, statement of Ken Wainstein, United States Attorney for the District of Columbia, available on June
28, 2005 at http://judiciary.house.gov/media/pdfs/wainstein042805.pdf.
63 Id. statement of James A. Baker, Counsel for Intelligence Policy, Office of Intelligence Policy and Review, United
States Department of Justice (“While section 215 has never been used to obtain such records, last year, a member of a
terrorist group closely affiliated with al Qaeda used Internet service provided by a public library to communicate with
his confederates. Furthermore, we know that spies have used public library computers to do research to further their
espionage and to communicate with their co-conspirators. For example, Brian Regan, a former TRW employee
working at the National Reconnaissance Office, who recently was convicted of espionage, extensively used computers
at five public libraries in Norther Virginia and Maryland to access addresses for the embassies of certain foreign
governments. A terrorist using a computer in a library should not be afforded greater privacy protection that a terrorist
using a computer in his home”), available at http://judiciary.house.gov/media/pdfs/baker042805.pdf.
64 Lee, The USA PATRIOT Act and Telecommunications: Privacy Under Attack, 29 RUTGERS COMPUTER &
TECHNOLOGY LAW JOURNAL 371, 379-80 (2003)(“By expanding the scope, Congress has now put the computer servers,
records, and other property of ISPs and other telecommunications entities within greater reach of law enforcement
agents. One particular concern with this and similar provisions, is that one whose records are sought need not be an
agent of a foreign power. United States citizens could potentially be investigated on account of activities connecting
them to an investigation of international terrorism, provided that the investigation is not conducted solely upon the
basis of activities protected by the First Amendment to the Constitution. This section is problematic in other ways.
Judges, for example, have no authority to deny a request if the application meets the requirements of the section. It is
unnecessary to report the actual documents seized or their usefulness to the court or Congress. While section 215(e)
does not waive any privilege, persons served by an order are gagged. Furthermore, the act overrides federal privacy
statutes and explicitly bars notice to the party whose records are being disclosed. Individuals would be unaware of
whether the government is unfairly inquiring into their extremely private information”).
Section 215 provides access to tangible items under the Foreign Intelligence Surveillance Act
(FISA), 50 U.S.C. 1861, by authorizing ex parte FISA court orders in foreign intelligence (as
amended), international terrorism, and clandestine intelligence cases.
• It reverts at sunset to the vehicle rental, transportation, storage rental, and
housing accommodation business records pertaining to foreign power or agent,
• Other legislation expanding the definition of financial institution for national
security letter purposes, P.L. 108-177, 117 Stat. 2628 (2003)(12 U.S.C. 3414)
might be thought to compensate for reduced authority upon reversion.
• Grand juries can subpoena the same material with fewer restrictions or
protections; section 215 FISA orders demand senior official and judicial
approval, explicit first amendment adherence, and Congressional reporting.
• In many instances the same material is available using national security letter
• It is only to be used in serious national security cases.
• The authority had been used in 35 instances as of March 30, 2005.
• The section produces an environment of abuse through its elimination of
safeguards (limited to third parties; requires neither probable cause nor
“articulable facts;” and need not be limited to items relating to the target of the
investigation) and through its use of a procedure that already carries reduced
safeguards (use of a secret court, which does not weigh the evidence; and one-
way gag orders of unknown breath and duration).
At one time, applications for a FISA wiretap or physical search order were required to certify that
“the” purpose for seeking the order was to obtain foreign intelligence information, 50 U.S.C.
1804(a)(7)(B), 1823(a)(7)(B)(2000 ed.). This, and FISA’s minimization requirements, among
other things, led to the view that FISA required a wall of separation between law enforcement and
intelligence investigations. Section 218 was designed to promote greater cooperation and
information sharing among criminal and foreign intelligence investigators, to remove the “wall”
that had been administratively constructed between. It does so by authorizing FISA wiretap or
65 The USA PATRIOT Act: Violating Reasonable Expectations of Privacy Protected by the Fourth Amendment Without
Advancing National Security, 82 NORTH CAROLINA LAW REVIEW 412, 423 (2003)(“The combination of eliminating the
reasonable suspicion standard and expanding FISA to any United States person signifies that United States citizens can
be ordered to produce records without any level of individualized suspicion of wrongdoing. By extending FISA beyond
foreign powers and their agents to United States persons and by no longer requiring individualized suspicion to search
United States persons and seize records, the federal government has circumvented the Fourth Amendment in the name
of combating international terrorism. Even where exceptions to the warrant requirement apply, probable cause is almost
always required except where special circumstances justify searches based on reasonable suspicion or suspicionless
searches. Section 215 is unconstitutional in that it eliminates the reasonable suspicion type standard and extends FISA
to United States persons contrary to the purpose of FISA and the spirit of the Fourth Amendment”).
physical search order applications even if the acquisition of foreign intelligence information is no
more than a “significant” reason for the application, 50 U.S.C.1804(a)(7)(B), 1823(a)(7)(B). The
FISA review court concluded that this standard permits applications where intelligence
information collection supplies some measurable reason for the application and that the provision
passes constitutional muster, In re Sealed Case, 310 F.3d 717, 735-46 (F.I.S.Ct.Rev. 2002).
The Supreme Court has held that the assertion of the President’s national security powers will not
excuse the failure to comply with the Fourth Amendment’s warrant requirements during the
course of an investigation of domestic terrorists, United States v. United States District Court
(Keith), 407 U.S. 297, 314-21 (1972). The Court expressly declined to address or express any
opinion with regard to “the issues which may be involved with respect to activities of foreign
powers or their agents,” Id. at 321-22. Nor would the Court hold that standards and procedures
similar those of Title III need necessarily have to be duplicated in such cases, Id. at 22.
Prior to Keith, “[f]or decades Presidents had claimed inherent power to conduct warrantless
electronic surveillance in order to gather foreign intelligence in the interests of national security,”
ACLU v. Barr, 952, F.2d 457, 460 (D.C. Cir. 1991). Following Keith, when defendants in criminal
proceedings raised constitutional challenges the lower federal courts in at least three circuits
“sustained the President’s power to conduct warrantless electronic surveillance for the primary 66
purpose of gathering foreign intelligence information, Id. at 461(emphasis added). After
Congress enacted FISA, several courts used this “primary purpose” language to respond to the
arguments of criminal defendants who challenged the FISA “the purpose” certification and who
argued that FISA had been used solely to avoid the more stringent Title III requirements 67
demanded in a criminal investigation.
In the aftermath of 9/11, the Administration sought to change the “the purpose” certification
requirement to a “a purpose” certification requirement, §153, H.R.—, Hearing, at 74. Its
explanation was concise, “Current law requires that FISA be used only where foreign intelligence
gathering is the sole or primary purpose of the investigation. This section will clarify that the
certification of a FISA request is supportable where foreign intelligence gathering is ‘a’ purpose
66 Citing, United States v. Brown, 484 F.2d 418 (5th Cir. 1973); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974);
and United States v. Truong, 629 F.2d 908 (4th Cir. 1980).
67 United States v. Duggan, 743 F.2d 59, 77-8 (2d Cir. 1984)(emphasis added)(“FISA permits federal officials to obtain
orders authorizing electronic surveillance ‘for the purpose of obtaining foreign intelligence information. The
requirement that foreign intelligence information be the primary objective of the surveillance is plain not only from the
language of §1802(b) but also from the requirements ain §1804 as to what the application must contain. . . [O]therwise
valid FISA surveillance is not tainted simply because the government can anticipate that the fruits of such surveillance
may later be used, as allowed by §1806(b), as evidence in a criminal trial”); United States v. Pelton, 835 F.2d 1067, th
1075-1076 (4 Cir.1987)(“We also reject Pelton’s claim that the 1985 FISA surveillance was conducted primarily for
the purpose of his criminal prosecution, and not primarily ‘for the purpose of obtain foreign intelligence information’ as
required by 50 U.S.C. 1802(b) . . . We agree with the district court that the primary purpose of the surveillance, both
initially and throughout, was to gather foreign intelligence information”); cf., United States v. Johnson, 952 F.2d 565, st
572 (1 Cir. 1991)(“FISA applications must contain, among other things, a certification that the purpose of the
requested surveillance is the gathering of foreign intelligence information. . .. Although evidence obtained under FISA
subsequently may be used in criminal prosecutions, the investigation of criminal activity cannot be the primary purpose th
of the surveillance”); but see, United States v. Sarkissian, 841 F.2d 959, 964 (9 Cir. 1988)(declining to adopt the th
“primary purpose” standard); United States v. Hammoud, 381 F.3d 316, 334 (4 Cir. 2004)(construing FISA in its pre-
USA PATRIOT Act form) (“even if the primary purpose requirement test applies, it is satisfied here”).
of the investigation. This change would eliminate the current need continually to evaluate the
relative weight of criminal and intelligence purposes, and would facilitate information sharing
between law enforcement and foreign intelligence authorities which is critical to the success of
anti-terrorism efforts,” Hearing at 56-7.
Both House and Senate bills substituted the final language, “a significant purpose,” §153, H.R.
The House Judiciary Committee characterized the change as “a compromise between current law
and what the Administration has proposed,” H.Rept. 107-236, at 60, and the FISA review court
concluded that the change “imposed a requirement that the government have a measurable
foreign intelligence purpose, other than just criminal prosecution of even foreign intelligence
crimes,” In re Sealed Case,310 F.3d 717, 735 (F.I.S.Ct.Rev. 2002).
Section 218 sunsets on March 10, 2006 except with respect to foreign intelligence investigations
initiated before that date. Whether the wall of separation between criminal and foreign
intelligence investigations will be or must be reconstructed at that point is unclear at best. Section
504 of the act(which does not sunset) adds language to the FISA wiretap and physical search
schemes calling for continued cooperation and declaring cooperation no bar to the certification in 68
a FISA application of an intelligence-gathering purpose, 50 U.S.C. 1806(k), 1825(k).
Moreover, the Department of Justice and the FISA review court now appear to doubt that FISA 69
prior to passage of the act required such a wall of separation. Thus, the expiration of section 218
may not require reconstruction of the wall, although applications for FISA wiretap or search
orders would once again have to certify that foreign intelligence gathering constituted “the”
purpose for the application.
68 “Federal officers who conduct electronic surveillance to acquire foreign intelligence information under this title may
consult with Federal law enforcement officers to coordinate efforts to investigate or protect against—(A) actual or
potential attack or other grave hostile acts of a foreign power or agent of a foreign power; (B) sabotage or international
terrorism by a foreign power or an agent of a foreign power; or (C) clandestine intelligence activities by an intelligence
service or network of a foreign power or by an agent of a foreign power. (2) Coordination authorized under paragraph
(1) shall not preclude the certification required by section 104(a)(7)(B) [50 U.S.C. 1804]or the entry of an order under
section 105 [50 U.S.C. 1805],” 50 U.S.C. 1805(k). Similar language appears in 1825(k) for physical searches.
69 “[I]t is quite puzzling that the Justice Department, at some point during the 1980s, began to read the statute as
limiting the Department’s ability to obtain FISA orders if it intended to prosecute the targeted agents . . . Apparently to
avoid running afoul of the primary purpose test used by some courts, the 1995 Procedures limited contacts between the
FBI and the Criminal Division in cases where FISA surveillance or searches were being conducted by the FBI for
foreign intelligence (FI) or foreign counterintelligence (FCI) purposes. The procedures stated that ‘the FBI and
Criminal Division would ensure that advice intended to preserve the option of a criminal prosecution does not
inadvertently result in either the fact or the appearance of the Criminal Division’s directing or controlling the FI or FCI
investigation toward law enforcement objectives’. Although these procedures provided for significant information
sharing and coordination . . . they eventually came to be narrowly interpreted within the Department of Justice . . . as
requiring . . . a wall to prevent the FBI intelligence officials from communicating with the Criminal Division regarding
ongoing FI or FCI investigations. The Department’s attitude changed somewhat after [internal and General Accounting
Office reports] concluded that the Department’s concern over how the FISA court or other federal courts might
interpret the primary purpose test had inhibited necessary coordination between intelligence and law enforcement
officials. [The internal] report also concluded, based on the text of FISA and its legislative history, that not only should
the purpose of the investigation not be inquired into by the courts, but also that Congress affirmatively anticipate that
the underlying investigation might well have a criminal as well as foreign intelligence objective,” 310 F.3d at 723, 725,
Section 218 is perhaps the most fundamental of the changes accomplished by the expiring
sections of the act. Therefore it is not surprising that the Justice Department’s defense of the
section is both extensive and explicit:
The USA PATRIOT Act authorizes government agencies to share intelligence so that a
complete mosaic of information can be compiled to understand better what terrorists might
be planning and to prevent attacks. Prior law, as interpreted and implemented, had the effect
of sharply limiting the ability of law enforcement and intelligence officers to share
information, which severely hampered terrorism investigators’ ability to connect the dots.
However, the USA PATRIOT Act, along with changes in Attorney General Guidelines and
Foreign Intelligence Surveillance Act (FISA) court procedures, brought down this wall
separating intelligence from law enforcement and greatly enhanced foreign intelligence
information sharing among federal law enforcement and national security personnel,
intelligence agencies, and other entities entrusted with protecting the nation from acts of
terrorism. This increased ability to share information has been invaluable to the conduct of
terrorism investigations and has directly led to the disruption of terrorist plots and numerous
arrests, prosecutions, and convictions in terrorism cases.
The recent investigation and prosecution of members of an al Qaeda cell in Lackawanna,
New York illustrates the benefits of the increased information sharing brought about by the
USA PATRIOT Act. This case involved several residents of Lackawanna, who traveled to
Afghanistan in 2001 to receive training at an al Qaeda-affiliated camp near Kandahar. The
investigation of the “Lackawanna Six” began during the summer of 2001, when the FBI
received an anonymous letter indicating that these six individuals and others might be
involved in criminal activity and associating with foreign terrorists. The FBI concluded that
existing law required the creation of two separate investigations in order to retain the option
of using FISA: a criminal investigation of possible drug crimes and an intelligence
investigation related to terrorist threats. Over the ensuing months, two squads carried on
these two separate investigations simultaneously, and there were times when the intelligence
officers and the law enforcement agents concluded that they could not be in the same room
during briefings to discuss their respective investigation with each other.
The USA PATRIOT Act, however, took down the “wall” separating these two
investigations by making clear that the sharing of case-sensitive information between these
two groups was allowed. As a result of key information shared by intelligence investigators,
law enforcement agents were able to learn that an individual mentioned in the anonymous
letter was an agent of al Qaeda. Further information shared between intelligence and law
enforcement personnel then dramatically expedited the investigation of the Lackawanna Six
and allowed charges to be filed against these individuals. Five of the Lackawanna Six
pleaded guilty to providing material support to al Qaeda, and the sixth pleaded guilty to
conducting transactions unlawfully with al Qaeda. These individuals were then sentenced to
prison terms ranging from seven to ten years.
Before the passage of the USA PATRIOT Act, applications for orders authorizing
electronic surveillance or physical searches under FISA had to include a certification from a
high-ranking Executive Branch official that the purpose of the surveillance or search was to
gather foreign intelligence information. As interpreted by the courts and later the Justice
Department, this requirement meant that the primary purpose of the collection had to be to
obtain foreign intelligence information rather than evidence of a crime. Over the years, the
prevailing interpretation and implementation of the primary purpose standard had the effect
of limiting coordination and information sharing between intelligence and law enforcement
personnel. Because the courts evaluated the government’s purpose for using FISA at least in
part by examining the nature and extent of such coordination, the more coordination that
occurred, the most likely courts would find that law enforcement, rather than foreign
intelligence, had become the primary purpose of the surveillance or search.
* * *
In recent testimony before the Senate Judiciary Committee, Patrick Fitzgerald, U.S.
Attorney for the Northern District of Illinois, recounted from personal experience how this
“wall’ between law enforcement and intelligence personnel operated in practice:
I was on a prosecution team in New York that began a criminal investigation of Usama Bin
Laden in early 1996. The team—prosecutors and the FBI agents assigned to the criminal
case—had access to a number of sources. We could talk to citizens. We could talk to local
police officers. We could talk to other U.S. Government agencies. We could talk to foreign
police officers. Even foreign intelligence personnel. And foreign citizens. And we did all
those things as often as we could. We could even talk to al Qaeda members—and we did. We
actually called several members and associates of al Qaeda to testify before a grand jury in
New York. And we even debriefed al Qaeda members overseas who agreed to become
But there was one group of people we were not permitted to talk to. Who? The FBI
agents across the street from us in lower Manhattan assigned to a parallel intelligence
investigation of Usama Bin Laden and al Qaeda. We could not learn what information they
had gathered. That was the “wall.”
The USA PATRIOT Act brought down the “wall” separating intelligence officers from
law enforcement agents. . ..
Section 218 of the USA PATRIOT Act eliminated the “primary purpose” requirement. .
The Department has moved aggressively to implement sections 218 and 504 of the USA
PATRIOT Act and bring down “the wall.”
These efforts to increase coordination and information sharing between intelligence and
law enforcement officers, which were made possible by the USA PATRIOT Act, have
yielded extraordinary dividends by enabling the Department to open numerous criminal
investigations, disrupt terrorist plots, bring numerous criminal charges, and convict
numerous individuals in terrorism cases.
• The removal of the “wall” separating intelligence and law enforcement personnel
played a critical role in the Department’s successful dismantling of a Portland,
Oregon terror cell, popularly known as the “Portland Seven.” Members of this
terror cell had attempted to travel to Afghanistan in 2001 and 2002 to take up
arms with the Taliban and al Qaeda against United States and coalition forces
fighting there. . .. [A]t least one member of the cell [Battle] had contemplated
attacking Jewish schools or synagogues and had even cased such buildings to
select a target for such an attack. By the time investigators received this
information from the undercover informant, they had suspected that a number of
other persons . . . had been involved in the Afghanistan conspiracy. But while
several of these other individuals had returned to the United States from their
unsuccessful attempts to reach Afghanistan, investigators did not yet have
sufficient evidence to arrest them.
Before the USA PATRIOT Act, prosecutors would have faced a dilemma in deciding
whether to arrest Battle immediately. If prosecutors had failed to act, lives could have been
lost through a domestic terrorist attack. But if prosecutors had arrested Battle in order to
prevent a potential attack, the other suspects in the investigation would have undoubtedly
scattered or attempted to cover up their crimes. Because of sections 218 and 504 . . . it was
clear that the FBI agents could conduct FISA surveillance of Battle to detect whether he had
received orders from an international terrorist group to reinstate the domestic attack plan on
Jewish targets and keep prosecutors informed as to what they were learning. This gave
prosecutors the confidence not to arrest Battle prematurely while they continued to gather
evidence on the other members o the cell. Ultimately, prosecutors were able to collect
sufficient evidence to charge seven defendants and then to secure convictions and prison
sentences ranging from three to eighteen years for the six defendants taken into custody.
Charges against the seventh defendant were dismissed after he was killed in Pakistan by
Pakistani troops. . .. Without sections 218 and 504 of the USA PATRIOT Act, however, this
case like would have been referred to as the “Portland One” rather than the “Portland
• The Department shared information pursuant to sections 218 and 504 before
indicting Sami Al-Arian and several co-conspirators on charges related to their
involvement with the Palestinian Islamic Jihad (PIJ). PIJ is alleged to be one the
world’s most violent terrorist outfits. . ..
In this case, sections 218 and 504 . . . enabled prosecutors to consider all evidence
against Al-Arian and his co-conspirators, including evidence obtained pursuant to FISA that
provided the necessary factual support for the criminal case. By considering the intelligence
and law enforcement information together, prosecutors were able to create a complete history
for the case and put each piece of evidence in its proper context. . .
• Prosecutors and investigators also used information shared pursuant to sections
case . . .
• The information sharing between intelligence and law enforcement personnel
made possible by sections 218 and 504 . . . was useful in the investigation of two
Yemeni citizens . . . who were charged last year with conspiring to provide
material support to al Qaeda and HAMAS. . .
• The Department used sections 218 and 504 to gain access to intelligence, which
facilitated the indictment of Enaam Arnaout, the Executive Director of the
Illinois-based Benevolence International Foundation(BIF). . . Arnaout ultimately
pleaded guilty to a racketeering charge, admitting that he diverted thousands of
dollars from BIF to support Islamic military groups in Bosnia and Chechnya. He
was sentenced to over 11 years in prison.
• The broader information sharing and coordination made possible by sections 218
and 504 . . . assisted the prosecution in San Diego of several persons involved in
an al Qaeda drugs-for-weapons plot, which culminated in several guilty pleas.
Two defendants admitted that they conspired to distribute approximately five
metric tons of hashish and 600 kilograms of heroin originating in Pakistan to
undercover United States law enforcement officials. Additionally, they admitted
that they conspired to receive, as partial payment for the drugs, four “Stinger”
anti-aircraft missiles that they then intended to sell to the Taliban. . .
• Sections 218 and 504 were critical in the successful prosecution of Khaled Abdel
Latif Dumeisi, who was convicted . . . of illegally acting as an agent of the
former government of Iraq. . . During this investigation, intelligence officers
conducting surveillance of Dumeisi pursuant to FISA coordinated and shared
information with law enforcement agents and prosecutors investigating Dumeisi
for possible violations of criminal law. Because of this coordination, law
enforcement agents and prosecutors learned from intelligence officers of an
incriminating telephone conversation that took place in April 2003 between
Dumeisi and a co-conspirator. This phone conversation corroborated other
evidence that Dumeisi was acting as an agent of the Iraqi government and
provided a compelling piece of evidence at Dumeisi’s trial. Report, at 2-8.
The absence of the wall has stimulated concerns that the cooperation between law enforcement
and intelligence officials creates the risk that coordination could be used to evade the restricting
safeguards the law imposed upon each.
The FISA appellate court found no Fourth Amendment infirmity in section 218:
Even without taking into account the President’s inherent constitutional authority to
conduct warrantless foreign intelligence surveillance, we think the procedures and
government showings required under FISA, if they do not meet the minimum Fourth
Amendment warrant standards, certainly come close. We, therefore, believe firmly . . . that
FISA as amended [by section 218] is constitutional because the surveillances it authorizes
are reasonable. In re Sealed Case, 310 F.3d 717, 746 (F.I.S.Ct.Rev. 2002).
Yet “commentators have reached differing conclusions regarding the In re Sealed Case court’s
Fourth Amendment holding. The court’s Fourth Amendment analysis has been criticized for
‘resting on shaky and previously unexplored ground’ and reach[ing] the wrong conclusion under 70
Fourth Amendment principles and precedent.”
By virtue of section 218 FISA surveillance or physical search applications need only certify that
foreign intelligence gathering is a “significant” purpose for seeking the order rather than “the”
purpose, 50 U.S.C. 1804(a)(7)(B), 1823(a)(7)(B).
• The section makes it clear that a “wall” between FBI criminal and intelligence
investigators is unnecessary.
70 The USA PATRIOT Act: Violating Reasonable Expectations of Privacy Protected by the Fourth Amendment Without
Advancing National Security, 82 NORTH CAROLINA LAW REVIEW 412, 425 (2003), quoting, Foreign Intelligence
Surveillance Court of Review Holds that Prosecutors May Spy on American Agents of Foreign Powers Without a
Warrant—In re Sealed Case, 310 F.3d 717 (F.I.S.Ct.Rev. 2002), 116 HARVARD LAW REVIEW 2246, 2250 (2003), and
citing, Whitehead & Aden, at 1101-104. See also, Leaving FISA Behind: The Need to Return to Warrantless Foreign
Intelligence Surveillance, 113 YALE LAW JOURNAL 179, 199 (2003)(“sweeping opinion that contradicted longstanding
interpretations of FISA across the circuits”); The Fuss Over Two Small Words: The Unconstitutionality of the USA
PATRIOT Act Amendments to FISA Under the Fourth Amendment, 71 GEORGE WASHINGTON LAW REVIEW 291, 345
(2003)(“the Review Court far from resolved the issue of whether FISA is constitutional under the Fourth Amendment
and its holding remains vulnerable to collateral attack in the federal courts”).
• Section 504 (50 U.S.C. 1806(k); 1825(k))(law enforcement cooperation does not
preclude purpose certification) which does not expire may be sufficient to
prevent reconstruction of the wall.
• In re Sealed Case, 310 F.3d 717 (F.I.S.Ct.Rev. 2002) suggests that even prior to
the USA PATRIOT Act the wall was neither constitutionally nor statutorily
• Facially, FISA procedure for issuance of a surveillance order seems more
demanding than Title III (law enforcement wiretaps) but more accommodating
• Use of FISA has increased dramatically over the years; Title III seems to be
seldom used in terrorism cases (mostly used in drug trafficking cases).
• The existence of the wall is like trying to do one jigsaw puzzle on two separate
• The wall prevented effective communication and cooperation in terrorism cases;
removal has been beneficial.
• The wall was designed to guarantee that law enforcement and intelligence officer
would honor the limitations placed upon their respective wiretapping and search
Section 223 is discussed above.
Federal wiretap law immunizes those who assist in the execution of a law enforcement
interception order, 18 U.S.C. 2511(2)(a), FISA supplies a similar immunity for those who assist in
the execution of a FISA pen register or trap and trace device order, 50 U.S.C. 1842(f). On its face,
section 225 seems to grant immunity to anyone who complies with a FISA order—surveillance
(wiretap), physical search, pen register/trap and trace device, or access to tangible items—that is, 71
providing a grant of immunity for compliance with an order under the entire Act. It may be,
however, the immunity is only available for compliance with a FISA surveillance order; hence,
the reference to a FISA wiretap in the caption, and the subsection’s placement in 50 U.S.C. 1805
which relates to the issuance of FISA wiretap orders and which empowers the court to order a
“common carrier, landlord, custodian, or other specified person” to furnish “all information,
facilities, or technical assistance” for execution of a surveillance order.
71 50 U.S.C. 1805(h)(emphasis added)(“No cause of action shall lie in any court against any provider of a wire or
electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other
specified person thereof) that furnishes any information, facilities, or technical assistance in accordance with a court
order or request for emergency assistance under this Act”).
Section 225 came late to the legislative process. It cannot be found in the Administration request,
Hearings, at 67-90, or in S. 1501 as passed by the Senate, 147 Cong. Rec. S10604-630 (daily ed.
October 11, 2001), or in H.R. 2975 as passed by the House, 147 Cong. Rec. H6726-758 (daily ed.
October 12, 2001). It first appears at the eleventh hour in H.R. 3162, 147 Cong. Rec. H7166
(daily ed. October 23, 2001). The section-by-section analysis that accompanied consideration of
the bill simply states, “Provides immunity from civil liability from subscribers, tenants, etc. for
entities that comply with FISA wiretap orders,” 147 Cong. Rec. H7198 (daily ed. October 23,
Except for assistance provided with respect to investigations begun beforehand, section 225
immunity disappears on March 10, 2006. As with the expiring “cause of action”clauses of section
223, the expiring “no cause of action” clauses of section 225, may be subject to a number of
interpretations. If the sunset exception in section 224(b) does no more than continue pending
investigations in place, then it is no more likely to preserve a grant of immunity than to grant a
cause of action. Conversely, both a cause of action and immunity from liability arising out of an
investigation might be thought to survive because they can be characterized as matters “[w]ith
respect to any particular foreign intelligence investigation” or “with respect to any particular
offense or potential offense” began or occurring before March 10, 2006.
In the absence of an explicit enforcement device, explicit immunity provisions encourage
communications providers and other third parties to cooperate in the execution of a FISA order.
On the other hand, immunity from civil liability removes one of the principal incentives for a
third party addressed in a FISA order to petition the court to quash or modify the order.
Justice Department officials have argued that the assistance of providers can be critical to the
timely execution of an order; that comparable immunity has long existed for assistance in the
execution of a court ordered law enforcement wiretap; and that the authority has been effectively 72
used at least once by an FBI field office in an espionage investigation.
Critics might question why recourse to a FISA wiretap order was necessary when law
enforcement wiretap orders—which afford immunity to assisting communications providers—are
available for espionage investigations, 18 U.S.C. 2516.
Section 225 establishes immunity for assistance in the execution of a FISA surveillance order, and
perhaps for compliance with any FISA order, 50 U.S.C. 1805(h).
• It encourages cooperation and discourages court challenges.
72 House Hearings, statement of Mary Beth Buchanan, United States Attorney for the Western District of Pennsylvania,
available on June 28, 2005 at http://judicary.house.gov/media/pdfs/buchanan042605.pdf.
As noted at the outset, section 6006 of the Intelligence Reform and Terrorism Prevention Act of
2004, P.L. 108-458, 118 Stat. 3742 (2004), (a) amends the definition of “agent of a foreign
power” for FISA purposes to include a foreign national who is preparing for or engaging in
international terrorism, and (b) makes the sunset provisions of section 224 applicable to the 73
amendment. FISA makes agents of a foreign power the appropriate targets for FISA surveillance
and physical search orders, 18 U.S.C. 1805, 1824. The definition of agents of a foreign power
already included individuals preparing for or engaging in international terrorism for or on behalf
of a foreign power, 50 U.S.C. 1801(b)(2)(C). Section 6001 excuses the need to show that the
illicit activity is being conducted at the behest or benefit of a foreign power—as long as the target
is not an American (not a U.S. person).
The language of section 6001 is identical to that of section 1 of S. 113, as passed by the Senate, 74
149 Cong. Rec. S5899 (daily ed. May 8, 2003); S.Rept. 108-40 (2003). On the House side, the
Judiciary Committee report on H.R. 10 had recommended a comparable provision in the form of
a presumption, H.Rept. 108-724, Pt. 5, at 34,170-1 (2004). Similar legislative proposals had been th
considered during the 107 Congress, see e.g., S. 2586 and S. 2659, Amendments to the Foreign th
Intelligence Surveillance Act: Hearing Before the Senate Select Comm. on Intelligence, 107
Cong., 2d Sess. (2002).
The Senate report explains the rationale for the section as it appeared in S. 113:
The purpose of S. 113 is to amend the Foreign Intelligence Surveillance Act of 1978 (FISA) .
. . to permit surveillance of so-called “lone wolf” foreign terrorists. S. 113 would allow a
FISA warrant to issue upon probable cause that a non-United States person is engaged in or
preparing for international terrorism, without requiring a special showing that the non-United
States person also is affiliated with a foreign power. By eliminating the requirement of a
foreign-power link for FISA warrants in such cases, S. 113 would allow U.S. intelligence
agencies to monitor foreign terrorists who, though not affiliated with a group or government,
pose a serious threat to the people of the United States. In light of the significant risk of
devastating attacks that can be carried out by non-United States persons acting alone,
individual terrorists must be monitored and stopped, regardless of whether they operate in
coordination with other individuals or organizations,” S.Rept. 108-40 at 2.
73 Section 6001 provides, “(a) In General.—Section 101(b)(1) of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801(b)(1)) is amended by adding at the end the following new subparagraph: ‘(C) engages in international
terrorism or activities in preparation therefore; or’. (b) Sunset.—The amendment made by subsection (a) shall be
subject to the sunset provision in section 224 of P.L. 107-56 (115 Stat. 295), including the exception provided in
subsection (b) of such section 224.”
FISA defines international terrorism to mean “activities that—(1) involve violent acts or acts dangerous to human life
that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if
committed within the jurisdiction of the United States or any State; (2) appear to be intended—(A) to intimidate or
coerce a civilian population; (B) to influence the policy of a government by intimidation or coercion; or (C) to affect
the conduct of a government by assassination or kidnaping; and (3) occur totally outside the United States, or transcend
national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce
or intimidate, or the locale in which their perpetrators operate or seek asylum,” 50 U.S.C. 1801(c) .
74 See CRS Report RS22011, Intelligence Reform and Terrorism Prevention Act of 2004: “Lone Wolf” Amendment to
the Foreign Intelligence Surveillance Act.
Section 6001 explicitly embraces the sunset exception found in section 224(b). Thus, the
amendment in section 6001 continues to apply after March 10, 2006 with respect to any particular
foreign intelligence investigation begun prior to that date.
At first blush, there might be some question of whether a provision, that declares that agents of a
foreign power need not be agents of a foreign power, is sufficient to come within Keith case 75
reservations concerning the fourth amendment’s application in terrorism cases. The multi-
national definition of “international terrorism” and the limitation of the section’s amendment to
foreign nationals may suffice, but the question seems to have troubled some, but not all, of the th76
witnesses who testified regarding similar legislation in the 107 Congress. Some Members of
the Senate Judiciary Committee also suggested that section’s rationale might have to be 77
reenforced if it is to be reauthorized.
Section 6001 amends the FISA definition of “agent of a foreign power” to include a foreign
national who is preparing for or engaging in international terrorism thereby excusing the need to
show that the illicit activity is being conducted at the behest or benefit of a foreign power—as
long as the target is not an American (not a U.S. person).
• Although Justice Department believes the section is constitutional, there might be
some question of whether defining an agent of a foreign power as one who need
not be an agent of foreign power comes within Keith reservations for agents of a
75 “We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of
foreign powers or their agents,” United States v. United States District Court, 407 U.S. 297, 321-22 (1972).
76 S. 2586 and S. 2659, Amendments to the Foreign Intelligence Surveillance Act: Hearing Before the Senate Select
Comm. on Intelligence, 107th Cong., 2d Sess. (2002), compare, statement of Mr. James A. Baker, United States
Department of Justice Counsel for Intelligence Policy, at 24 (“The Department has concluded that S. 2586 is
constitutional”), with, statement of Mr. Jerry Berman, Executive Director of the Center for Democracy and
Technology, at 41 (“Both [S. 2586 and S. 2659] create grounds for serious constitutional challenges by defendants in
criminal cases if information collected under these warrants are used as evidence in criminal prosecutions”). S.Rept.
108-40 at 98-102 reprints a more extensive explanation of the Justice Department’s view of the constitutionality of S.
77 S.Rept. 108-40 at 11-2 (additional views of Sens. Leahy and Feingold (“In many ways, S. 113 seems to be a
legislative change in search of a rationale. First, we were told that this amendment to FISA would have allowed the FBI
to obtain a warrant before 9-11 to search the computer and belongings of Zacarias Moussaoui. Then, after it became
clear . . . that the FBI had all the evidence it needed to procure such a warrant . . . the rationale changed. Next, we were
told that the bill was necessary to conduct surveillance of ‘lone wolf terrorists,’ who purportedly operate in isolation.
Next, after it became clear that few, if any, international terrorists work alone and that existing criminal tools such as
Title III were sufficient to handle those rare cases, we were told that the measure was necessary because it was hard to
prove the connection between terrorists. Now, in this report, the implication is revived that the FBI’s pre-9/11 failures
were due in large part to problems with the law. . .. It appears, however, that the search for a rationale to support this
bill—and one that can be put forth without meaningful oversight of FISA’s actual implementation—continues in full
force. When the sunset on this measure arrives we will need stronger rationales than this to justify its extension”).
Subsection 224(a) cites several sections and subsections of Title II that are not subject to its
declaration of sunset. They are:
• section 203(a)(authority to share grand jury information) (permitting the
disclosure of matters occurring before a federal grand jury—that involve foreign
intelligence or counterintelligence or foreign intelligence information—to federal
law enforcement, intelligence, protective, immigration, national defense, or
national security officials), F.R.Crim.P. 6(e)(3)(D);
• section 203(c)(procedures) (directing the Attorney General to establish
procedures for the disclosures authorized in section 203(a)[grand jury matters]
and 203(b)[relating to similar disclosure of information secured through the
execution of a court order authorizing the interception of wire, oral or electronic
communications for law enforcement purposes] that identify a “United States
person”), 18 U.S.C. 2517 note;
• section 205 (employment of translators by the Federal Bureau of Investigation)
(authorizing the Federal Bureau of Investigation (FBI) to expedite the hiring of
translators to support counterterrorism investigations and operations), 28 U.S.C.
• section 208 (designation of judges) (authorizing the expansion of the FISA court
from 7 to 11 judges and insisting that at least 3 of the judges reside within 20
miles of the District of Columbia), 50 U.S.C. 1803;
• section 210 (scope of subpoenas for records of electronic communications)
(expands the authority for subpoenas directing communications service providers
to disclose customer-identifying information to include information concerning
customer payment sources (e.g., credit card or bank account), 18 U.S.C. 2703;
• section 211 (clarification of scope) (makes it clear that when cable companies
provide Internet or other communications services they are subject to the same
law enforcement access procedures that apply to other communications service
providers and not to the cable provider procedures that require customer
notification when law enforcement access is to be afforded), 47 U.S.C. 551;
• section 213 (authority for delaying notice of the execution of a warrant)
(authorizes sneak and peek warrants, i.e., warrants that call for delayed
notification of their execution for a reasonable period if notification would have
adverse consequences and that only permit the seizure of tangible property when
reasonably necessary), 18 U.S.C. 3103a(b);
• section 216 (modification of authorities relating to the use of pen registers and
trap and trace devices) ((1) modifies the pen register/trap and trace device
procedure—the procedure for court orders authorizing law enforcement
installation and use of pen registers or trap and trace devices (essentially
surreptitious caller id devices that identify only the source and destination of
telephone calls)—to apply to electronic communications (e.g., e-mail addresses
and Internet URL’s); and (2) permits execution of the orders anywhere within the
United States, rather than only in the judicial district in which the order is
issued), 18 U.S.C. 3121, 3123;
• section 219 (single-jurisdiction search warrants for terrorism) (amends the
Federal Rules of Criminal Procedure to permit magistrates in terrorism cases to
issue search and arrest warrants to be executed outside of the judicial district in
which they are sitting), F.R.Crim.P. 41(b)(3);
• section 221 (trade sanctions) (makes it clear that the Trade Sanctions Reform and
Export Enhancement Act does not limit the application of criminal and civil
sanctions available for violation of various anti-terrorism provisions), 22 U.S.C.
• section 222 (assistance to law enforcement agencies) (confirms that those who
help law enforcement authorities execute an order approving the installation and
use of trap and trace devices or pen registers are entitled to reasonable
reimbursement and that nothing in the act is intended to impose technical
obligations or requirements upon them), 18 U.S.C. 3124 note.
Table 1. Expiring USA PATRIOT Act Sections and Subsections
Section Description Observation
201 (18 U.S.C. Adds to the wiretap predicate offense list: 18 P.L. 107-197, §301(a), 116 Stat. 728 (2002) adds
2516(1)(q)) U.S.C. 229 (chemical weapons), 2332 (crimes of new crimes (18 U.S.C. 2332f (bombing public
violence against Americans overseas), 2332a places), 2339C (financing terrorism)) to the
(weapons of mass destruction), 2332b expiring portion of the wiretap predicate list,
(multinational terrorism), 2332d (financial 18 U.S.C. 2516(1)(q)
transactions with terrorist countries), 2339A
(supporting terrorists), 2339B (supporting
202 (18 U.S.C. Adds to the wiretap predicate offense list: 18 What does “potential offense” mean for this
2516(1)(c)) U.S.C. 1030 (computer fraud & abuse) and other sections of the act? A suspected
crime? Or conduct that may blossom into a
crime? (E.g., computer trespass before 12/31/05
for purposes launching a denial of service attack
thereafter?) Or both?
203(b)(18 Authorizes disclosure of foreign intelligence, Disclosure to law enforcement officials is
U.S.C. 2517(6)) counterintelligence, and foreign intelligence authorized under a permanent subsection, 18
information -gathered thru a Title III court U.S.C. 2517(1); P.L. 107-296, §896, 116 Stat.
ordered wiretap- to law enforcement, 2257 (2002) permanently authorizes disclosure
intelligence, protective, immigration, national to foreign law enforcement officials, and in
defense, and national security officials cases of counterintelligence, international
terrorism, or clandestine intelligence to federal,
state, and/or foreign officials, 18 U.S.C. 2517
203(d)(50 Other provisions of law notwithstanding, P.L. 107-296, §897(a), 116 Stat. 2257 (2002),
U.S.C. 403-5d) authorizes disclosure of foreign intelligence, amends the temporary provisions of §203(d) to
counterintelligence, and foreign intelligence permit disclosure when consistent with the
information -gathered in a criminal investigation needs to protect sources and methods and
- to law enforcement, intelligence, protective, sensitive law enforcement information; the
immigration, national defense, and national amendment expires with its host
204 (18 U.S.C. Makes it clear that the general pen register/trap Amendment seems purely technical
2511(2)(f)) & trace device proscriptions do not bar foreign
intelligence gathering involving foreign
Section Description Observation
206 (50 U.S.C. Authorizes directives in FISA surveillance Permanent law elsewhere authorizes FISA
1805(c)(2)(B)) orders commanding the assistance of individuals surveillance orders with the description (if
not specifically identified in the order (where identity unknown) of the target and without
the target has taken steps to prevent the specifying the targeted place or facilities (if
identification of specific individuals)(“roving unknown), 50 U.S.C. 1805(c) (1) (A), (B); the
surveillance”) target must be identified if the place or facilities
are not in the law enforcement section, 18
U.S.C. 2518(4), (11)
207 (50 U.S.C. Extends the permissible duration of FISA The expiring section also temporarily extends
1805(e), surveillance and physical search orders directed the general maximum duration of FISA physical
1824(d)) against agents of a foreign power to 120 days search orders from 45 to 90 days
and permits extensions at intervals of up to one
year (up from 90 days (surveillance) & 45 days
(searches) for both original orders and
209 (18 U.S.C. Makes it clear that the law enforcement access At least one court had held that seizure of
2709, to voice mail requires only a search warrant voice mail required a Title III court order, U.S.
2510(1),(14)) v. Smith, 155 F.3d 1051 (9th Cir. 1998); except
while being sent, e-mail can be seized pursuant
to a search warrant, 18 U.S.C. 2703
212 (18 U.S.C. Permits communications service providers to P.L. 107-296, §225(d), 116 Stat. 2157 (2002)
2702, 2703) disclose either customer records or the repeals the emergency content disclosure
content of customer communications in an provision and replaces it with broader,
emergency situation involving the immediate permanent provision, 18 U.S.C. 2702(b)(7);
danger of serious bodily injury emergency record disclosure authority expires
214 (50 U.S.C. Permits the use of FISA pen register/trap & The expiring section also declares, with respect
1842, 1843) trace device orders with respect to electronic to FISA pen register/trap & trace device orders
communications (e-mail address, URL or the use of such devices in FISA emergency
identification but not content) under procedure situations, that U.S. persons may not be st
previous limited to wire communications targeted based solely on their 1 Amendment
(telephone number of source and addressee); protected activities
eliminates the requirement that the
communication either be that of terrorists or
spies or related to their criminal activities
215 (50 U.S.C. Authorizes FISA court orders for FBI access to Language revived upon sunset of §215
1861, 1862) tangible items in investigations to protect authorizes FISA court orders in foreign
against terrorism or spying (or per P.L. 107-intelligence information or terrorist
108, §314(a)(6), 15 Stat. 1402 (2001) to obtain investigations for FBI access to business
foreign intelligence information not concerning records relating to public transportation,
a U.S. person) lodging, vehicle rental, or storage rental upon
an assertion of the presence of specific and
articulable facts giving reason to believe that
the records related to a foreign power or agent
of foreign power; P.L. 108-177, §374, 117 Stat.
2628 (2003) expands the Right to Financial
Privacy Act’s national security letter provision
to allow access - in terrorism or spy
investigations - to business records held by
banks, credit card companies, car dealers, real
estate agencies, stock brokers, jewelers,
casinos and certain other business that may be
party to large cash transactions, 12 U.S.C. 3414
Section Description Observation
217 (18 U.S.C. Authorizes the interception of communications Does the sunset exception for a “potential”
2511(2)(i), to and from a trespasser within a protected crime apply to authority under §217 with
2510(21)) computer respect to trespass before but a communication
after 12/31/05 relating to a denial of service
attack after sunset?
218 (50 U.S.C. Permits FISA surveillance or search orders In re Sealed Case, 310 F.3d 717 (F.I.S.Ct.Rev.
1804(a)(7)(B), based on a certification that foreign intelligence 2002); the Justice Dept. study cited there; and
1823(a)(7)(B)) gathering provides a “significant” reason for permanent FISA amendments in the USA
seeking the order; earlier language (revived at PATRIOT Act (50 U.S.C. 1806(k), 1825(k))
sunset) referred to “the” reason and was one suggest that perhaps the earlier intelligence/law
basis for the early conclusion that FISA enforcement wall of separation will/need not be
investigations and any related criminal reconstructed after 12/31/05
investigation should be sequential rather than
220 (18 U.S.C. Authorizes service anywhere in the world of a Section 219, which does not sunset, allows
2703, 3127) court order granting law enforcement access to federal magistrates in international and
the content of voice mail and e-mail domestic terrorism cases to issue search or
communications (and/or related records) held arrest warrants that may be executed
by service providers ; prior to §220 such anywhere in the world, F.R.Crim.P. 41(b)(3)
orders had to be issued in the place where they
were to be executed
223 (18 U.S.C. Creates a cause of action against the U.S. for There have been no administrative or judicial
2520(f),(g), willful violations of Title III (18 U.S.C. ch.119) cases filed; the Attorney General has
2707(d),(g), or of FISA; makes it clear that the improper recommended that the section be made
2712) disclosure of information gathered in a court-permanent
ordered wiretaps, or use of a pen register or
trap & trace device, or access to wire or
electronic communications (e.g., e-mail, voice
mail) is unlawful; confirms the authority of
agency heads to take disciplinary action based
on willful/intentional privacy violations
225 (50 U.S.C. Provides immunity for those who aid in the Civil liability for FISA violations under
1805(h) execution of FISA surveillance or search order permanent provisions is predicated upon
or in the performance of an emergency FISA intentional, unauthorized violation of FISA (50
wiretap or search U.S.C. 1810, 1809, 1828, 1827)
Senior Specialist in American Public Law