Apologists justified the broad, civil-liberties corroding powers granted to the government under the USA PATRIOT Act by arguing that they would be used to put terrorists behind bars. Yet several provisions can be used against Americans in a wide range of investigations that have nothing to do with terrorism. Others are too vague, jeopardizing legitimate activities protected under the First Amendment. Worse, the Department of Justice has worked to expand and/or make permanent a number of these provisions despite the fact that they were sold to the public as "temporary" measures and are scheduled to expire, or "sunset," in December of 2005.
Periodically in our EFFector newsletter, we profile one of the 16 provisions scheduled to sunset and explain in plain language what's wrong with the provision and why Congress should allow it to expire.
Below is a collection of our analyses so far:
Sections 201 (and 805), "Authority to Intercept Wire, Oral, and Electronic Communications Relating to Terrorism," and "Material Support for Terrorism"
Sections 202 and 217, "Authority To Intercept Wire, Oral, And Electronic Communications Relating To Computer Fraud And Abuse Offenses,” and Section 217, "Interception Of Computer Trespasser Communications.
Section 204, "Clarification of Intelligence Exceptions From Limitations on Interception and Disclosure of Wire, Oral, and Electronic Communications."
Section 206, "Roving Surveillance Authority Under the Foreign Intelligence Surveillance Act of 1978."
Section 207, "Duration of FISA Surveillance of Non-United States Persons Who Are Agents of a Foreign Power."
Section 209, "Seizure of VoiceMail Messages Pursuant to Warrants."
Section 212 and Homeland Security Act Section 225, "Emergency Disclosure of Electronic Communications to Protect Life and Limb."
Section 214, "Pen Register and Trap and Trace Authority Under FISA"
Section 215, "Access to Records and Other Items Under the Foreign Intelligence Surveillance Act."
Section 220, "Nationwide Service of Search Warrants for Electronic Evidence."
Section 223, "Civil Liability for Certain Unauthorized Disclosures"
Section 225, "Immunity for Compliance With FISA Wiretap"
Section 201, "Authority to Intercept Wire, Oral, and Electronic Communications Relating to Terrorism," and Section 805, "Material Support for Terrorism"
Section 201, in combination with Section 805 which does not sunset makes it so the FBI can get a wiretap to listen in on your private conversations based on your association with an organization classified by the U.S. government as "terrorist" whether or not the organization engages in legitimate political advocacy or humanitarian work. An example of such an organization is the anti-apartheid African National Congress, which was designated a "terrorist" organization before apartheid was defeated.
EFF objects to Section 201 only to the extent that it authorizes wiretapping to investigate violations of Section 805. We don't necessarily oppose the renewal of Section 201 as long as Section 805 is repealed.
How PATRIOT Sections 201 and 805 Changed the Law
The FBI can wiretap your phone, or "bug" your house or office, only when investigating the most serious crimes. PATRIOT 201 made a number of additions to the list of crimes that can justify police surveillance, including one brand new crime created by PATRIOT Section 805 providing "material support" to terrorist organizations in the form of "expert advice or assistance." This section, which does not sunset, could criminalize a broad range of speech protected by the First Amendment.
Why Section 805 Should Be Repealed
Section 805 makes it a crime to offer "expert advice and assistance" to any foreign organization that the Secretary of State has designated as "terrorist." But, as we note above, many of these "terrorist" organizations also advocate for, and provide humanitarian assistance to, their constituents. Yet PATRIOT makes it illegal to offer expert advice and assistance even for these legal, non-terrorist activities.
A humanitarian social worker training Hamas members how to care for civilian children orphaned in the conflict between Israelis and Palestinians could be sent to prison. So could a lawyer teaching IRA members about international law. Section 805 even extends to people engaged in activities to discourage terrorism, such as those offering training in effective peace negotiations or how to petition the United Nations regarding human rights abuses.
One federal court has already ruled that PATRIOT Section 805 is unconstitutional, since the vague terms "expert advice and assistance" could criminalize the First Amendment-protected activities described above. Yet the law is still in force throughout most of the U.S.
EFF does not necessarily oppose renewal of PATRIOT Section 201, authorizing the use of wiretaps in terrorism investigations, but strongly supports the repeal of Section 805, which could unconstitutionally criminalize the exercise of your First Amendment rights.
Section 202 and 217, "Authority To Intercept Wire, Oral, And Electronic Communications Relating To Computer Fraud And Abuse Offenses,” and Section 217, "Interception Of Computer Trespasser Communications.
The two provisions together make it easier for the FBI to get privacy-invasive wiretap orders and to intercept your electronic communications when investigating computer crimes even when those crimes have absolutely nothing to do with terrorism.
Wiretap orders are like super-warrants only the most serious crimes justify their use. Yet in the climate of fear in the wake the 9/11 terrorist attacks, the Justice Department persuaded Congress to expand the government's wiretap powers without ever having to cite even a single instance in which a computer-crime investigation much less a terrorism investigation had been hindered due to lack of surveillance authority.
The Justice Department also succeeded in pushing through a provision that under some circumstances gives the FBI the power to intercept your private electronic communications email messages, faxes, instant messages, etc. without a judge's approval.
How Sections 202 and 217 Changed the Law
- Section 202: The FBI can get a court's authorization to bug face-to-face conversations or tap phone calls only when investigating especially serious crimes. PATRIOT added computer crime to the list of felonies that justify such profound violations of privacy despite the fact that the Justice Department never presented evidence to suggest that this is necessary in the battle against either computer crime or terrorism.
- Section 217: It used to be that in order to intercept your private electronic communications in a computer-crime investigation, the FBI had to seek permission from a court. No more. Now, so long as a computer service provider merely claims you are "trespassing" on its network, the FBI is free to intercept your private communications as it so chooses.
Anti-terrorism laws cannot be justified by fear alone they must address a real need or be repealed. Absent a clear demonstration from the FBI that these new surveillance powers are necessary, Congress should allow Sections 202 and 217 to expire.
Section 204: "Clarification of Intelligence Exceptions From Limitations on Interception and Disclosure of Wire, Oral, and Electronic Communications."
Section 204: "Clarifying" Just How Scary the Law Already Was
Section 204's title makes it sounds innocuous: it's only a "clarification," making one small part of electronic surveillance law consistent with the way the rest of the law already worked. And that's true, to a point. But what 204 really clarified was just how bad the rest of the law was even before the USA PATRIOT Act passed, and how government surveillance of international communications is dangerously unregulated.
How Section 204 Changed the Law
There are several federal laws governing electronic surveillance by the government. They not only regulate government wiretaps, but also government access to stored communications (like voicemail and email), as well as specialized wiretaps done with pen registers or trap-and-trace devices. These "pen-trap" taps are a sort of mini-wiretap: instead of collecting the actual content of your communications, like the body of your email or the substance of your phone communication, they only collect information about your communications, like the phone numbers you called and the length of the calls, or the email addresses and size of the messages you receive. Pre-PATRIOT surveillance law made it clear that the general prohibitions against wiretapping and acquiring stored electronic communications applied only to surveillance done *inside* the United States, and didn't limit, for example, wiretapping international calls involving US persons, or accessing an American's email when it's stored on a foreign server. But there was one inconsistency Congress forgot to clarify that the US could also ignore pen-trap laws when the information is gathered outside the country. Section 204 fixed this "problem," removing yet another safeguard against unchecked surveillance.
The Problem: Unchecked Surveillance of All International Communications
The problem is that modern communications systems, especially the Internet, are global in their reach and operation. The email you send to your friend down the street could pass through a foreign Internet server, or be stored by his email provider on a computer in another country. Yet under the law, the US government could freely wiretap or access those foreign servers, or indiscriminately intercept international phone calls, so long as a specific US person isn't targeted. Via surveillance conducted outside of the country, the government could even build vast databanks of all international calls and every Internet communication that happened to cross the border—all without ever violating any statute. In fact, it already is!
The US National Security Agency (NSA) currently conducts massive surveillance of all global communications as part of a project code-named ECHELON. The ECHELON system, operated in partnership with the UK, automatically sweeps up staggering amounts of satellite, microwave, cellular, and fiber-optic traffic, including communications to and from North America, and then filters them all through lists of red-flag keywords provided by the participating intelligence agencies. This is no conspiracy theory: as even The New York Times (purchase required) has reported, the NSA's "global eavesdropping net regularly picks up communications involving Americans, including phone calls, faxes, email messages and other communications."
The Solution: Oppose the PATRIOT Act!
The indiscriminate and unchecked surveillance of citizens' international communications is unacceptable in a constitutional democracy. Americans don't give up their expectation of privacy simply by dialing an international number or unknowingly using a foreign server to route email, and most Americans would presumably be shocked to know that massive NSA computer arrays are storing and processing most if not all of their international communications.
Of course, this problem will persist even if Section 204 sunsets: 204's expiration would only remove one small weapon from the government's international surveillance arsenal. But strong public opposition to Section 204's expansion of international surveillance authority could send a message to Congress that the rest of the law needs fixing. Tell your legislators to get serious about controlling international surveillance that violates the privacy of people inside the US, starting with Section 204. Demand that the sunsetting provisions of the PATRIOT Act be allowed to expire!
Section 206: "Roving Surveillance Authority Under the Foreign Intelligence
Surveillance Act of 1978"
What Section 206 Does
Imagine that the FBI could, with a single search warrant, raid every house or office that an individual suspect has visited over an entire year - every single place, whether or not the residents themselves are suspects. Suppose that the FBI could do this without ever having to identify the suspect in question. This is what Section 206 allows in the communications context. Section 206 authorizes intelligence investigators to conduct "John Doe" roving surveillance meaning that the FBI can wiretap every single phone line, mobile communications device or Internet connection that a suspect might be using, without ever having to identify the suspect by name. This gives the FBI a "blank check" to violate the communications privacy of countless innocent Americans. What's worse, these blank-check wiretap orders can remain in effect for up to a year.
How Section 206 Changed the Law
Section 206 amended the Foreign Intelligence Surveillance Act (FISA) so that a wiretap order issued by the secret FISA court no longer has to specify what type of communications that the order applies to. This allows investigators to engage in "roving" surveillance, using a single wiretap order to listen in on any phone line or monitor any Internet account that a suspect may be using whether or not other people who are not suspects also regularly use it.
Why Section 206 Should Sunset
Roving wiretaps are allowed in regular criminal investigations, so it might seem reasonable that the PATRIOT Act made them available to intelligence investigators. But FISA wiretaps lack many of the safeguards that prevent abuse of criminal wiretaps. For example, orders are issued using a lower legal standard than the "probable cause" used in criminal cases, are subject to substantially less judicial oversight and typically last at least three times longer than criminal wiretaps. Surveillance targets are never notified that they were spied on. Most important, and also unlike criminal wiretaps, the FISA court can issue "John Doe" wiretaps that don't even specify the surveillance target's name.
The bottom line: further relaxing controls on FISA surveillance by adding roving capability is a recipe for abuse and likely violates the Fourth Amendment's requirement that search warrants "particularly describ[e] the place to be searched, and the persons or things to be seized."
EFF strongly opposes renewal of Section 206, and urges you to do the same. We also support the Security and Freedom Ensured Act (SAFE Act, S 1709/HR 3352), a PATRIOT reform bill that would, among other things, limit the damage done to privacy by Section 206 it would allow the FBI to get roving wiretaps on identified suspects, and John Doe taps on specific phone lines and Internet accounts, but not John Doe roving taps.
Section 207:"Duration of FISA Surveillance of Non-United States Persons Who Are Agents of a Foreign Power"
What Section 207 Does
Section 207 makes wiretap orders and physical search warrants issued by the FISA court last longer. The FISA court is a secret panel of judges established by the Foreign Intelligence Surveillance Act of 1978 to authorize government surveillance in foreign intelligence and terrorism investigations.
How Section 207 Changed the Law
Prior to PATRIOT, a FISA wiretap had a maximum duration of 90 days, and could be extended in 90-day increments. PATRIOT now allows a maximum duration of 120 days, with one-year extensions available.
Also prior to PATRIOT, FISA warrants for physical searches and their extensions were good for no more than 45 days. Now the warrants are good for up to 120 days, with extensions for up to one year.
Why Section 207 Should Sunset
FISA wiretaps and search warrants already lack many of the safeguards that prevent government abuse of criminal taps and warrants. For example, orders are issued using a lower legal standard than the "probable cause" used in criminal cases and are subject to substantially less judicial oversight, while surveillance targets are never notified that they were spied on. Therefore, time limits are a key check on this secret surveillance power: they help ensure that the government only intercepts particular conversations between particular people, and only searches particular places for particular evidence, regarding particular crimes, as required under the Fourth Amendment.
The time limits for FISA wiretaps and searches were already generous compared to taps and warrants available to the FBI in criminal investigations. For example, regular criminal wiretaps, which are issued for 30 days with 30-day extensions available, on average last 40 days and intercept 2,354 separate communications (phone calls, emails, faxes) between 96 people, most of whom are innocent bystanders. FISA taps, which now last at least four times as long as those criminal wiretaps, are certain to intercept many more innocent communications between many more innocent citizens. Yet PATRIOT weakened these checks without the DOJ ever having to show that the previous time limits had hindered earlier investigations.
Even before PATRIOT, if the time limit on a FISA wiretap or search warrant was running out, the FBI could go back to the FISA court for an extension, or in the case of an emergency, could even conduct searches or wiretaps without FISA court approval. Therefore, PATRIOT 207's extension of the FISA time limits is an unnecessary expansion of power with only one clear "benefit": it reduces the amount of paperwork the FBI has to do in order to maintain continuous surveillance. However, that paperwork is far from busy work it's a procedural check on government surveillance required by the Constitution. Needlessly reducing such checks on secret police power doesn't make us safer from terrorism. Instead, it makes us less safe from government abuse of that power.
EFF strongly opposes renewal of Section 207, and urges you to do the same.
How Section 209 Changed the Law
Before PATRIOT, the privacy of your voice mail was protected by the Wiretap Act. This meant that in order to listen to your messages, the FBI had to secure a wiretap order. These orders are like "super" warrants they have even stricter Constitutional requirements than do warrants for physical searches.
After PATRIOT, however, your voice mail is governed by the Electronic Communications Privacy Act (ECPA), a statute that gives you much less legal protection against government spying. Now, instead of needing a wiretap order to listen to your voice mail, the FBI can use other legal processes with weaker privacy-protection standards:
- If you haven't listened to your voice mail messages and they are 180 days old or less, the FBI can use a search warrant.
- If you have listened to your messages, or if they are older than 180 days, the FBI can use a special court order for stored communications, or a subpoena.
- In some cases, the FBI may be able to simply ask for the voice mail, and your phone company may give it, without fulfilling any legal requirements at all.
As a result, the privacy of your voice mail is substantially reduced:
- Before PATRIOT, the FBI could gain access to your voice mail only by showing facts to a judge that demonstrate "probable cause" to believe that you are committing a crime. Now it need only demonstrate "reasonable grounds" for the search to get a court order or, if it uses a subpoena, mere "relevance" to an investigation.
- Before PATRIOT, the FBI eventually had to notify you if it listened to your voice mail messages. Now if they use a search warrant, the only way you'll find out is if the FBI uses your voice mail against you in court.
- Before PATRIOT, the FBI could listen to your voice mail only if you were suspected of one of a limited number of serious crimes. Now it can gain access to your voice mail messages for any kind of criminal investigation whatsoever.
- Before PATRIOT, if the FBI listened to your voice mail illegally, it couldn't use the messages as evidence against you this is the so-called exclusionary rule. But the ECPA has no such rule, so even if the FBI gains access to your voice mail in violation of the statute, it can freely use it as evidence against you.
In stripping these key privacy protections from your voice mail, PATRIOT is in possible violation of the Fourth Amendment to the U.S. Constitution.
Why Section 209 Should Sunset
Section 209 is a perfect example of the opportunism shown by the Department of Justice in the wake of the 9/11 terrorist attacks. Knowing that a bill tagged as "anti-terrorist" couldn't fail to pass, the DOJ loaded PATRIOT with its entire wish list of new powers, regardless of whether these powers targeted terrorism. Section 209 is one such power expanding the FBI's ability to search your communications in any criminal investigation, terrorism-related or not. Yet the DOJ never indicated that the previous law significantly hindered its investigations, much less put stumbling blocks in the fight against terrorism.
Passed by Congress in a climate of fear, Section 209 effects a dangerous and unnecessary reduction in citizens' privacy and should be allowed to sunset.
Section 212 and Homeland Security Act Section 225: "Emergency Disclosure of Electronic Communications to Protect Life and Limb"
PATRIOT Section 212 allows your ISP or phone company to share your private communications with the government even if it isn't served with a search warrant. This tramples on your rights by allowing the Department of Justice to do an end-run around laws that safeguard the privacy of your personal communications.
Section 212 is a special case because it has been replaced by subsequent legislation namely Section 225 of the Homeland Security Act (HSA) of 2002. HSA Section 225 expanded on the powers granted by PATRIOT 212, but unlike that PATRIOT provision, HSA Section 225 WILL NOT SUNSET. HSA Section 225 is now the law at issue, and as explained below, it should be repealed.
How PATRIOT Section 212 and Homeland Security Act Section 225 Changed the Law
Before PATRIOT, in order to get communications records or stored communications such as email or voice mail from your ISP or phone company, the FBI had to get a search warrant or court order from a judge, or get a subpoena from a grand jury. Congress gave us this protection in the Electronic Communications Privacy Act of 1986 because even though your ISP or phone company stores messages for you, they're still your messages. They shouldn't be shared without your consent unless a court or grand jury demands them.
After PATRIOT Section 212, your ISP or phone company could hand over your private records and messages to any law enforcement agent, so long as that communications provider reasonably believed that the immediate danger of death or serious physical injury required it to do so. This could be done without your knowledge or consent.
But Section 212 wasn't the end of the story. The Homeland Security Act expanded the power of PATRIOT Section 212 by 1) lowering the relevant standard from "reasonable belief" of a life-threatening emergency to a "good faith belief," 2) allowing communications providers to use the emergency exception to disclose your data to any government entity, not just law enforcement, and 3) dropping the requirement that the threat to life or limb be immediate. Most significantly, HSA Section 225 does not expire, rendering the sunset of PATRIOT Section 212 irrelevant.
Why Homeland Security Act Section 225 Should Be Repealed
Communications providers now need only a "good faith" belief that there is a life-threatening emergency to justify the disclosure of your communications and records. This belief could be based solely on the representations of a government agent claiming that there is such an emergency whether or not that is actually the case. This kind of abuse has already occurred: one Department of Justice attorney said he needed information to investigate a terror threat when he actually was investigating a bank robbery, while another agent cited a bio-terrorism threat in what turned out to be a drug sting.
HSA Section 225 is a prime example of how the Department of Justice has quietly and incrementally pushed Congress to expand its powers under PATRIOT. By pushing for additional provisions in often-obscure bills, it has worked to ensure that its powers are expanded and made permanent before the public debate over PATRIOT's sunsetting provisions has even begun. This subtle legislative opportunism must be exposed and rebuked HSA Section 225 must be repealed.
HSA Section 225 takes away your rights by allowing the Department of Justice to do an end-run around laws intended to protect the privacy of your personal communications. EFF strongly supports its repeal, and we urge you to support it, too.
What PATRIOT 214 Does
Section 214 of the USA PATRIOT Act significantly expands the FBI's electronic surveillance powers under the Foreign Intelligence Surveillance Act (FISA), as well as lowering the standards under which the secret FISA court can authorize the FBI to spy on your phone and Internet communications. In particular, Section 214 makes it easier for the FBI to install "pen registers" and "trap-and-trace devices" (collectively, "pen-traps") in order to monitor the communications of citizens who are not suspected of any terrorism or espionage activities.
How PATRIOT 214 Changed the Law
Before the PATRIOT Act, the government could only get a FISA pen-trap order when the communications to be monitored were likely to be either (1) those of an international terrorist or spy or (2) those of a foreign power or its agents relating to the criminal activities of an international terrorist or spy. PATRIOT 214 threw out this requirement. Now, any innocent person's communications can be tapped with a pen-trap so long as it is done "for" an intelligence investigation. The FBI doesn't have to demonstrate to the FISA court that the communications are relevant to its investigation. Nor can the court deny the FBI's request; if the FBI certifies the tap is "for" such an investigation, the FISA court must issue the order.
That Section 214 lowered the standard for FISA pen-traps is even more disturbing in light of the fact that PATRIOT Section 216 expanded their reach. Unlike regular wiretaps issued under much stricter standards, pen-traps aren't supposed to collect the actual content of your communications, such as what you say on the telephone. Instead, they capture "non-content" information about your communications, such as the telephone numbers that you dial or the numbers of people who call you.
Before PATRIOT, the statute defined pen registers and trap-and-trace devices solely in the context of telephone communications. But Section 216, which does not sunset, expanded the pen-trap definition to include devices that monitor Internet communications, without clarifying what portions of Internet communications are "content," requiring a full wiretap order, versus "non-content," which can be legally acquired only with a pen-trap order. At the very least, this change means that the government can use a pen-trap to see the email addresses of people you're sending email to and the addresses of people who send email to you, along with the timestamp and size in bytes of each email. The FBI can monitor the IP addresses of all the computers you interact with over the Internet, or capture the IP addresses of every person visiting a particular website. Under the vaguely written statute, it may even be able to capture the URL of every web page that you read, although the FBI refuses to confirm or deny whether it has done so.
Why PATRIOT 214 Should Sunset
The FISA Court operates in total secrecy, hearing argument only from the Department of Justice. It does not publish any details about the surveillance it authorizes, and doesn't publish any of its opinions. As a result, there's no way for citizens to know how often FISA pen-traps are authorized, whether and to what extent they're being used to spy on Internet communications, or how the court interprets the distinction between communications content and non-content when it comes to Internet communications. This secrecy, along with FISA's lower standards for authorizing surveillance compared to those required in regular criminal cases, was originally premised on the assumption that the Executive Branch should be given extra leeway when investigating foreign threats to national security. Yet PATRIOT Section 214 completely eliminated the requirement that the target of the surveillance must actually be a foreign spy or international terrorist. Such unrestrained power to engage in secret surveillance against innocent citizens is unjustified and antithetical to a free society, representing a serious threat to privacy and freedom of expression on the Internet.
EFF strongly opposes renewal of Section 214, and urges you to do the same. Rather than renewing or expanding PATRIOT powers, Congress should conduct an in-depth review of how PATRIOT has been used or abused since being passed in October 2001.
What PATRIOT 215 Does
Section 215 allows the FBI secretly to order anyone to turn over business records or any other "tangible things," so long as the FBI tells the secret Foreign Intelligence Surveillance Act (FISA) court that the information sought is "for an authorized investigation...to protect against international terrorism or clandestine intelligence activities." These demands for records come with a "gag order" prohibiting the recipient from telling anyone, ever, that they received a Section 215 order.
How PATRIOT 215 Changed the Law
Secret orders to turn over business records were available from the FISA court before the PATRIOT Act. However, this extreme power secretly to demand private records was checked by two key safeguards.
First, the FBI could only get a few types of records that were of particular use in investigating terrorists and spies records belonging to hotels, motels, car and truck rental agencies, and storage rental facilities. Second, the FBI had to present to the FISA court "specific and articulable facts giving reason to believe that the person to whom the records pertain[ed]" was a spy or terrorist.
Section 215 removed these safeguards. Now, the FBI can use a secret order to get anything, "including books, records, papers, documents, and other items." Nor does the FBI still need actual facts to show that you may be a spy or terrorist. Instead, these secret orders can now be used to investigate anyone, even a U.S. citizen not suspected of any crime, so long as the FBI certifies to the FISA court that the records are sought for a terrorism or espionage investigation. The FISA court must issue the order if the FBI so certifies, even when there are no facts to back it up.
Why PATRIOT 215 Should Sunset
Section 215 violates your Constitutional right to privacy under the Fourth Amendment, by allowing the FBI to search through your most personal information including financial records, medical records, student records, even your library records without ever having to prove that they have probable cause to suspect you of a crime, or even that your records are relevant to an investigation.
Furthermore, under Section 215 the FBI can investigate United States persons (citizens and legal residents) based at least in part on their exercise of First Amendment rights, and can investigate non-U.S. persons based solely on their free speech activities or religious practices. You could be investigated based on the political or religious meetings you attend, the websites you visit or even the books that you read. As a result, Americans may be chilled from exercising these Constitutional rights. Already, attendance at and donations to mosques have dropped significantly, as many Muslims reasonably fear that they will be targeted for investigation based solely on their religious beliefs.
Finally, and unlike grand jury subpoenas used in non-FISA investigations, there is no way for someone served with a Section 215 order to go to court and challenge its legality. Combined with the FISA court's lack of discretion and oversight when it comes to Section 215 orders, this is a recipe for abuse, giving the FBI essentially unchecked power to scrutinize the personal lives of innocent Americans.
Of the PATRIOT provisions scheduled to sunset, Section 215 is the most dangerous to our civil liberties. EFF strongly opposes its renewal, and urges you to do the same.
How Section 220 Changed the Law
Before PATRIOT, the FBI could execute a search warrant for electronic evidence only within the geographic jurisdiction of the court that issued the warrant - for example, the FBI couldn't get a New York court to issue a warrant for email messages stored by your ISP in California.
After PATRIOT, courts can issue warrants for electronic evidence your email messages, your voice mail messages and the electronic records detailing your web-surfing anywhere in the country. Notably, Section 220 isn't reserved for terrorism-related investigations, despite the fact that PATRIOT was sold to the American public as a necessary anti-terrorism measure. Instead, it applies in any kind of criminal investigation whatsoever.
Why Section 220 Should Sunset
Section 220 significantly increases the chances that search warrants that fail to meet Constitutional standards will be used to search and seize your electronic communications:
- Section 220 allows the FBI to pick and choose which courts it can ask for a search warrant. This means it can "shop" for judges that have demonstrated a strong bias toward law enforcement with regard to search warrants, using only those judges least likely to say no even if the warrant doesn't satisfy the strict requirements of the Fourth Amendment to the Constitution.
- By allowing courts to issue warrants to be served on communications providers in far-away states, Section 220 reduces the likelihood that your ISP or phone company will try to protect your privacy by challenging the warrant in court, even if the warrant is clearly unconstitutional. A small San Francisco ISP served with such a warrant is unlikely to have the resources to appear before the New York court that issued it. Yet because you won't be notified if the FBI uses a warrant to get your electronic communications, your ISP is the only entity in a position to fight for your rights.
The FBI argues that having to secure search warrants from more than one court during an investigation is a waste of time. But local judicial oversight is a key check against unreasonable searches. Further, the FBI already has the ability to conduct emergency searches without a warrant when it doesn't have time to go to a local judge.
Even worse, Section 220 isn't necessary even to help combat terrorism PATRIOT section 219 already allows nationwide search warrants in terrorism-related investigations. In fact, the only practical result of Section 220 is less paperwork for the FBI at the expense of your Constitutional rights.
Section 220 threatens your Fourth Amendment right against unreasonable searches and seizures. EFF strongly opposes its renewal, and we urge you to oppose it, too.
What's PATRIOT Section 223?
Section 223 is a unique PATRIOT provision in that, originally, most privacy and civil liberties organizations supported it without reservation: the ACLU has called it a "pro-privacy provision that provides a civil remedy for unlawful surveillance," the Center for Democracy and Technology deems it (PDF) uncontroversial, and even we sang its praises in a previous version of this analysis. But upon further examination we've come to our senses and recognized Section 223 for what it truly is: a legislative trojan horse. The few checks and balances that 223 obviously added to the law blinded us to the ones it subtly removed. The end result is an amendment to the law that actually made it much harder to sue the federal government for illegally wiretapping your communications or accessing private stored communications like your voice mail and email.
How Section 223 Changed the Law: The Good News
Section 223 made clear that the civil penalties that apply when investigators conduct wiretaps or seize electronic evidence without a court order also apply to unauthorized disclosure of communications that were legally obtained. That means that even if investigators get a court order to collect your communications in the first place, they can't show them to anyone without court approval. Section 223 also created new privacy protections by providing authority for agency heads to discipline federal officers who violate electronic surveillance laws.
How Section 223 Changed the Law: The Bad News
Before PATRIOT, the US government could be sued under the same procedures and standards as anyone else who violated the Wiretap Act or the Electronic Communications Privacy Act (ECPA). Section 223, however, made it much harder for people to sue the government when federal agents violate these laws:
- You can no longer sue the government for "intentional" violations of the law, like you can sue everyone else. Instead, the violation has to be "willful," a much higher standard.
Before, you could get a trial in front of a jury if you sued the government. Now, suits against the government are heard only by a judge.
- Unlike with any other defendant, if you want to sue the federal government for illegal wiretapping you have to first go through an administrative procedure with the agency that did the wiretapping. That means, essentially, that you have to politely complain to the illegal wiretappers and tip them off to your legal strategy, and then wait for a while as they decide whether to do anything about it before you can sue them in court.
- Before PATRIOT, in addition to being able to sue for money damages, you could sue for declaratory relief from a judge. For example, an Internet service provider could ask the court to declare that a particular type of wiretapping that the government wants to do on its network is illegal. One could also sue for an injunction from the court, ordering that any illegal wiretapping stop. PATRIOT section 223 significantly reduced a judge's ability to remedy unlawful surveillance, making it so you can only sue the government for money damages. This means, for example, that no one could sue the government to stop an ongoing illegal wiretap. At best, one could sue for the government to pay damages while the illegal tap continued!
Why (Parts of) Section 223 Should Sunset
The poison pills hidden amongst Section 223's uncontroversial new privacy protections sharply reduced the government's accountability for illegal wiretapping and access to stored private communications. The government's broad authority to conduct electronic surveillance requires equally powerful checks and balances to increase accountability and prevent abuse, especially since PATRIOT in many cases reduced court oversight and lowered the legal standards necessary for engaging in such surveillance. One of the most significant protections is giving people subject to surveillance the ability to have their day in court, and Section 223 makes that much harder.
Although the new protections added by Section 223 are good ideas and should be renewed, they certainly don't balance out the damage done to privacy by the rest of the section, which Congress should allow to sunset.
Mostly Harmless, or Enabling Unchecked Surveillance?
At first glance, section 225 of the USA PATRIOT Act seems pretty harmless. It gives legal immunity to Internet service providers (ISPs), phone companies, landlords, and others who assist foreign intelligence investigators in secretly conducting wiretaps or physical searches. Third parties who help with garden-variety criminal wiretaps already have this protection, so why shouldn't the same rules apply in foreign intelligence cases? And why would we want Ma Bell or Pa AOL to get sued just for helping catch terrorists? Those were the Justice Department's sensible-sounding arguments.
On second glance, though, it's clear that 225 is just one of many parts of the law making it near-impossible for anyone to challenge the federal government's broad surveillance authority under the Foreign Intelligence Surveillance Act (FISA)—powers PATRIOT greatly expanded. Unless those other parts of the law are reined in, Section 225 should not be renewed. That way, perhaps the fear of liability will prompt ISPs and phone companies to act as a check against abuse of power by challenging FISA orders they think are unconstitutional or otherwise illegal.
Foreign Intelligence Surveillance: An Offer Your ISP Can't Refuse
Imagine you work for a phone company or an ISP. Or maybe you're the landlord of an apartment complex. Imagine that one day several federal agents arrive in your office and present you with a document demanding that you assist them in secretly intercepting a customer's communications or sneaking into a tenant's apartment. The document, along with the polite but insistent federal agents, explains that this is an international terrorism investigation and it's an emergency. The wiretap or search, they say, is authorized by the FISA statute and has been approved personally by the Attorney General of the United States.
Obviously, they explain, you will never be allowed to tell anyone about how you helped them spy on your customers or tenants, because national security cases require the utmost secrecy. Furthermore, unlike in regular criminal cases where eventually notifying surveillance targets is required by law, the targets in this case will never be notified. And even if your customers or tenants did find out and wanted to sue, Section 225 of the PATRIOT Act would completely shield you from any legal liability, regardless of whether the search or wiretap ended up violating the FISA statute or the Constitution.
Besides, even if you wanted to resist, the secret FISA court that administers foreign intelligence surveillance only hears argument from the Justice Department. The "court" doesn't even have a public address that you could send legal papers to! To top it off, it's unclear from the statute whether you'd be violating the gag order if you told a lawyer about the surveillance, or went to a regular federal district court to challenge it.
So, if you comply with the order, no one will find out, you can't get sued, and it won't cost you a thing—the government will cover all the costs. Would you say no to the order? Would you even bother to call a lawyer?
Why Section 225 Should Sunset
When taken alone, Section 225 appears reasonable. But when taken in context with all of the above—the lack of any procedure to challenge a FISA order, the never-ending gag order that forever bans you from telling anyone, the secret court that won't listen to your arguments—it's just another incentive for ISPs and phone companies to bend to the demands of the Justice Department or the FISA Court, even when the demand is legally questionable.
If those who are asked to help with FISA surveillance don't challenge the process, no one will—because no one else can. Rather than giving ISPs and phone companies a free pass to collaborate with the government in potentially illegal wiretapping, the law must give them an incentive to go to court when they smell something fishy—and provide them a clear procedure for doing so. Right now, the law does neither. Make Congress fix the law: oppose PATRIOT renewal and demand accountability, from both the government and your ISP!