Duke Law School

Civil Liberties Online

PART B: Coordination and Data Sharing Among Agencies

Institutional Capacity: Enhancing the Government?s Institutional Capacity to Address Terrorist Activity

The events of 9/11 prompted the government and its critics to take stock of its capability to investigate and to prevent terrorist activity. One of the most troubling conclusions to come out of this evaluation was that a substantial amount of inefficiency resulted from institutional barriers to interagency information sharing. Specifically, the FBI and law enforcement had what many come to deem “a wall” between them.  Several provisions of the USA PATRIOT Act sought to dismantle this “wall” given the consensus that greater information sharing between criminal investigators and foreign intelligence gatherers was sorely needed. See Christopher Schroeder, Will the Sun Set on the Patriot Act?, Duke Law Magazine, 2005, at 27.

The first provision that can be said to “lower the wall” relates to the sharing of information uncovered during a grand jury indictment. Section 203(a) permits information sharing “ when the matters involve foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)), or foreign intelligence information (as defined in clause (iv) of this subparagraph), to any Federal law enforcement,intelligence, protective, immigration, national defense, or national security official in order to assist the official receiving that information in the performance of his official duties.” This sharing of information facilitates investigations but also may lessen precautions that protect the privacy of an individual’s information. See Risa Berkower, Sliding Down a Slippery Slope? The Future Use of Administrative Subpoenas in Criminal Investigations, 73 Fordham L. Rev. 2251 (2005) (remarking that section 203(a) blurs the line between civil and criminal processes because it allows for the disclosure of grand jury information); but see Sara Sun Beale & James E. Felman, Responses to the September 11 Attacks: The Consequences of Enlisting Federal Grand Juries in the War on Terrorism: Assessing the USA Patriot Act's Changes to Grand Jury Secrecy, 25 Harv. J. L. & Pub. Pol’y 699 (2002) (supporting the rationale behind the Act’s section 203(a) but criticizing the lack of judicial supervision accompanying the section). This provision amends the Federal Rule of Criminal Procedure 6(e)(3) which generally prohibits disclosure of federal grand jury revelations except: (1) in other judicial proceedings; (2) to prevent abuse of grand jury process; (3) for presentation to other grand juries; or, (3) to state law enforcement officials. Any disclosure made under this provision must be reported under seal, within a reasonable time, to the court. So far, the courts seem willing to uphold this unprecedented change. See In re Lupron Mktg. & Sales Practices Litig., 313 F.Supp. 2d 8, 9 n.1 (D. Mass. 2004) (noting that the disclosure of grand jury information has been increasing, including the increase in disclosure made possible under the PATRIOT Act).

Section 203(b) permits law enforcement officials to share other information with federal officials. Specifically, the section allows “[a] ny investigative or law enforcement officer, or attorney for the Government, 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 any other Federal law enforcement, intelligence, protective, immigration, national defense, or national security official to the extent that such contents include foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)), or foreign intelligence information (as defined in subsection (19) of section 2510 of this title), to assist the official who is to receive that information in the performance of his official duties”. See Jane Doe 1 v. Merten, 219 F.R.D. 387 (E.D. Va. 2004) (acknowledging that section 203(b) authorizes the sharing of information between the Department of Labor and the Bureau of Central Immigration Services). Unlike 203(a), the court need not be notified of the disclosures pursuant to section 203(b). However, under section 223 of the PATRIOT Act, agencies and personnel guilty of intentional improper disclosure may be subject to a claim for damages and disciplinary action. (Section 223 also creates a cause of action against the United States for those individuals who were harmed by willful violations of federal wiretap law, stored communications prohibitions, or the FISA mandates on surveillance, physical searches, and/or the use of pen registers or trap and trace devices.)  Although section 223 is technically a sunset provision, its authority may not cease if section 224(b) only terminates investigative authority and not causes of action. Congressional Research Service of the Library of Congress, Charles Doyle, USA Patriot Act Sunset: Provisions That Expire December 31, 2005 (Jan. 2, 2004), available at http://www.epic.org/privacy/terrorism/usapatriot/RL32186.pdf.

The PATRIOT Act section 203(c) also mandates that the Attorney General establish procedures for the disclosure of information pursuant to sections 203(a) and 203(b). The federal official receiving the information may only use the information as necessary and may be otherwise limited in making further disclosures. Critics of section 203 of the PATRIOT Act suggest that safeguards regarding the procedures for the disclosure of information should be strengthened. See Heath H. Galloway, Don't Forget What We're Fighting For: Will the Fourth Amendment Be a Casualty of the War on Terror?, 59 Wash. & Lee L. Rev. 921, 965-8 (2002) (discussing the civil liberties concerns that section 203’s grand authorization of information sharing brings to the forefront).

Section 203(d) of the provision. Section 203(d) states that “[n] otwithstanding any other provision of law, it shall be lawful for foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)) or foreign intelligence information obtained as part of a criminal investigation to be disclosed to any Federal law enforcement, intelligence, protective, immigration, national defense, or national security official in order to assist the official receiving that information in the performance of his official duties”. Most of the impact of this particular provision has revolved solely around its application. Section 203(d) seems to summarize the authority under section 203(a) and 203 (b).  Does this provision swallow sections 203(a) and (b) or does it supplement them? Most analysis concludes that it is unlikely courts will find that Congress intended nullification of sections 203(a) and 203(b) authority with the inclusion of section 203(d).  See Congressional Research Service of the Library of Congress, Charles Doyle, The USA Patriot Act: A Legal Analysis (Apr. 15, 2002), available at http://www.epic.org/privacy/terrorism/usapatriot/RL31377.pdf.

Other provisions aimed at lowering “the wall” specifically relate to surveillance powers enacted under the Foreign Intelligence Surveillance Act (FISA).  The changes made by section 218 (as discussed in CATEGORY 1, PART A) facilitate surveillance access because the requisite purpose of the surveillance has been broadened.  The authority to conduct surveillance pursuant to the FISA power is a valuable tool for law enforcement. By using a FISA surveillance order, law enforcement avoids the predicate crime threshold for a Title III order as well as the probable cause requirement.  The use of FISA authority rather than Title III facilitates information sharing between law enforcement and foreign intelligence authorities. Under the previous laws, the more agency coordination, the more likely the court would find that the main purpose of the collection was law enforcement, thereby increasing the risk that the FISA might be unavailable or discontinued.  However, the practical effects of section 218 are debatable. See Richard Henry Seamon & William Dylan Gardner, The PATRIOT Act and the Wall Between Foreign Intelligence and Law Enforcement, 28 Harv. J.L. & Pub. Pol'y 319 (2005) (arguing that section 218 does not significantly increase information sharing among agencies as compared to before the Act’s passage).

Prior to the PATRIOT Act, the Department of Justice had developed protocols to facilitate information sharing, but for various reasons, these protocols did not accomplish what section 218 seeks to ensure.  Section 218 is buttressed by section 504, which permits federal officers investigating foreign intelligence to share evidence obtained with electronic surveillance or physical searches with federal law enforcement officers. Section 504 clarifies that coordination among enforcement officials shall not preclude the certification of a “significant” foreign intelligence purpose for FISA.  The courts generally have upheld the broadened authority under section 218. See In re Sealed Case No. 02-001, 310 F.3d 717 (FISCR 2002) (affirming the section 218 power on the basis that it did not revolutionize FISA but rather only extended its powers and intentions); see also In re Grand Jury Proceedings of the Special April 2002 Grand Jury, 347 F.3d 197 (7th Cir. 2003) (acknowledging the judicial approval of section 218’s authorization); accord United States v. Sattar, 2003 U.S. Dist. LEXIS 16164 (S.D.N.Y. 2003) (upholding government evidence obtained under pre- and post-PATRIOT Act standards and thus affirming the constitutionality of both FISA and its PATRIOT Act amendments).  However, criticism of section 218 continues to grow. See Michael P. O'Connor & Celia Rumann, Emergency and Anti-Terrorist Power: Going, Going, Gone: Sealing the Fate of the Fourth Amendment, 26 Fordham Int'l L.J. 1234 (2003) (criticizing the overly broad authority under section 218 that jeopardizes civil liberties; but see Joseph G. Poluka, Perspectives on the USA PATRIOT Act: the PATRIOT Act: Indispensable Tool Against Terror, 76 PA Bar Assn. Quarterly 33, 36 (2005) (arguing that the abuses hypothesized for the PATRIOT Act have not occurred and the Act, specifically with provisions like section 218, has successfully facilitated the anti-terrorism efforts).

Sections 901, 902, 903, and 905 of the PATRIOT Act may also be understood as attempts to further lower “the wall.”  Section 901 mandates the Director of CIA assist the Attorney General in receiving necessary surveillance evidence.  Section 902 amends the National Security Act of 1947 ("NSA") and instructs the Director of CIA to establish procedures for the effective dissemination of foreign intelligence information. Section 902 adds “international terrorist activities” to the kind of information that constitutes foreign intelligence for the purpose of the NSA. Typically, only the President or the Attorney General may authorize application for a FISA surveillance or physical search order.  FISA minimization procedures are crafted so as to be consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information. As a result, although the PATRIOT Act increases the role of the Director, the intelligence community must still work with the Attorney General to use FISA since the Director is not permitted to direct, manage or undertake execution of a FISA order himself. Additionally, In Section 903, Congress expresses its general sense that “ officers and employees of the intelligence community of the Federal Government, acting within the course of their official duties, should be encouraged, and should make every effort, to establish and maintain intelligence relationships with any person, entity, or group for the purpose

of engaging in lawful intelligence activities, including the acquisition of information on the identity, location, finances, affiliations, capabilities, plans, or intentions of a terrorist or terrorist organization, or information on any other person, entity, or group (including a foreign government) engaged in harboring, comforting, financing,

aiding, or assisting a terrorist or terrorist organization.Section 905 requires all federal law enforcement agencies to disclose expeditiously to the Director of the Central Intelligence any foreign intelligence acquired in the course of a criminal investigation, subject to certain exceptions such as those necessary to prevent jeopardizing an ongoing criminal investigation or other significant law enforcement interests.

PATRIOT Act Provisons

  • Permits an attorney for the government to disclose grand jury matters involving foreign intelligence or counter intelligence to other federal officials, to assist those officials in performing their duties related to federal law enforcement, intelligence, protective, immigration, national defense, or national security by amending FRCP 6(e)(3)(D) which generally prohibits disclosure of federal grand jury revelations except for in other judicial proceedings, to prevent abuse of grand jury process, for presentation to other grand juries, and to state law enforcement officials. (203(a))
  • Calls for confidential notification of the court that a disclosure has occurred and the entity to which it was made. Any disclosure made under this provision must be reported under seal, within a reasonable time, to the court. (203(a))
  • ?Permits law enforcement officials to share Title III information with the intelligence community under similar conditions as those in 203(a). The court need NOT be notified of the disclosures BUT, agencies and personnel guilty of intentional improper disclosure may be subject to a claim for damages and disciplinary action, 18 U.S.C. 2520.  (203(b))
  • Allows law enforcement officials to disclose evidence obtained through Title III wiretaps to officials in charge of a federal investigation when the evidence involves foreign intelligence, counterintelligence or foreign intelligence information. The federal official receiving the information may only use the information as necessary and may be otherwise limited in making further disclosures. Any disclosure made under this provision must be reported under seal, within a reasonable time, to the court. (203(b))
  • Orders the Attorney General to establish procedures for the disclosure of information pursuant to section 203(a) and 203(b). The federal official receiving the information may only use the information as necessary and may be otherwise limited in making further disclosures. (203(c))
  • Allows law enforcement officials to share information with the intelligence community, “notwithstanding any other provisions of law” (203(d))
  • With regard to obtaining authority to conduct FISA surveillance (a type of authorization that gives law enforcement a lot of power and is thus very valuable to them), this provision changed the requirement that the “primary purpose” of surveillance had to be to obtain foreign intelligence information (as opposed to obtain evidence related to the commission of a crime) to requiring merely a “substantial purpose.” (218)
  • Permits federal law enforcement officers to coordinate efforts and consult with federal intelligence officers to prevent, investigate, and protect against terrorist attacks. It also clarifies that such coordination shall not preclude the certification of a “significant” foreign intelligence purpose for FISA.(504)
  • Amends the National Security Act of 1947 instructing the Director of Central Intelligence to establish procedures for the effective dissemination of foreign intelligence information. (901)
  • Adds “information relating to the activities of international terrorists” to the kind of information that constitutes foreign intelligence for the purpose of the National Security Act. (902)
  • Expresses the sense of Congress that members of the intelligence community should be outgoing in their efforts to acquire information on terrorists and terrorist organizations. (903)
  • Requires all federal law enforcement agencies to disclose expeditiously to the Director of the Central Intelligence any foreign intelligence acquired in the course of a criminal investigation subject to certain exceptions such as those necessary to prevent jeopardizing an ongoing criminal investigation or other significant law enforcement interests. (905)

Other Relevant Provisions

  • Codifies the Information Systems Council created by executive order. To combat "stove piping" blamed for failures to "connect the dots" before Sept. 11, the president is directed to create an "information-sharing environment" allowing intelligence gatherers and analyzers to share information among agencies. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
  • Amends the Federal Rules of Criminal Procedure to allow more sharing of grand jury testimony related to a threat of terrorist attack or clandestine intelligence gathering. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
  • Applies to 14 government agencies and departments, including the CIA, the FBI, the National Security Agency and the Defense Intelligence Agency, as well as intelligence-related offices in the departments of Defense, State, Justice and Homeland Security and although the law is mostly classified, it is understood generally as encouraging greater information sharing among federal, state and local officials and put the CIA director in charge of establishing secure programs and procedures for sharing pieces of intelligence. Intelligence Authorization Act for Fiscal Year 2004, Pub. L. No. 108-177, 117 Stat. 2599 (2003).

Cases