Civil Liberties Online
PART A: Surveillance of Wire Communication, Oral Communication, and Electronic Communications
Surveillance Power: Expanding the Scope of the Government?s Surveillance Power
The USA PATRIOT Act expands the authority to conduct wire, oral, and electronic communications under both the FISA and the Title III surveillance authority. While wiretapping, electronic eavesdropping, or electronic surveillance are in many contexts equivalent terms, strictly speaking, wiretapping is limited to the mechanical or electronic interception of telephone conversations, while electronic eavesdropping or electronic surveillance refers to mechanical or electronic interception of communications generally.
As established in Berger v. New York, 388 U.S. 41 (1967) and Katz v. United States, 389 U.S. 347 (1967), the Fourth Amendment generally protects private conversations from surveillance. In passing Title III of the Omnibus Crime Control and Safe Streets Act of 1968, [Title III], Congress codified the general prohibition on eavesdropping but also authorized its use by law enforcement under carefully identified circumstances and procedures. 18 U.S.C. ? 2511(1968), Wiretapping under Title III only for statutorily enumerated serious crimes, or predicate crimes. Sections 201 and 202 of the USA PATRIOT Act expand the list of serious crimes which may be investigated via this Title III power. The expanded list of predicate crimes now authorizes wiretapping communications for investigation of an expanded list of crimes including chemical weapons offenses, 18 U.S.C. ? 229; use of weapons of mass destruction, 18 U.S.C. ? 2332(a); violent acts of terrorism transcending national borders, 18 U.S.C. ? 2332(b); financial transactions with countries that support terrorism, 18 U.S.C. ? 2332(d); material support of terrorism, 18 U.S.C. ? 2339(a); and material support of terrorist organizations, 18 U.S.C. ? 2339(b).
The Act also expands the government’s power to conduct surveillance pursuant to the Foreign Intelligence Security Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended at 50 U.S.C. ??1801-1811 (2000))[FISA] . To use FISA surveillance, no predicate crime is required; nor does the FISA require a “probable cause” showing. Instead “the President, through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information” with the proper minimization procedures. FISA, 50 U.S.C. ? 1802. .
Through the USA PATRIOT Act, Congress enlarged the scope of law enforcement surveillance situations to which FISA authority would apply. Section 218 enlarges the scope of the FISA authority by authorizing applications for wiretaps or physical searches so long as the gathering of foreign intelligence information is “a significant purpose” of the application. Prior to this change, the FISA authority had been interpreted as only available when the gathering of foreign intelligence information was “the primary purpose.” Contra United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004) (contending that the pre-PATRIOT Act standard was not a clear-cut primary purpose test as is often alleged); In re Sealed Case No. 02-001, 310 F.3d 717 (FISCR 2002) (determining that section 218 was not a sharp break from prior law, because the “wall’ between intelligence agents and law enforcement officials that had been developed by the Justice Department went beyond the requirements of prior law). While some have argued this change was necessary to enhance national security protection, see Nathan C. Henderson, The PATRIOT Act’s Impact on the Government’s Ability to Conduct Electronic Surveillance of Ongoing Domestic Communications, 52 Duke L.J. 179 (2002) (justifying section 218 due to the extreme threat the nation faced after the September 11th attacks), others worry about its consequences for civil liberties. See Vijay Sekhon, The Civil Rights of "Others": Antiterrorism, The Patriot Act, and Arab and South Asian American Rights in Post-9/11 American Society, 8 Tex. F. on C.L. & C.R. 117 (2003) (concluding that the section 218 change softened the requirements for surveillance and therefore subjected many Americans to arbitrary invasions of privacy).
PATRIOT Act Provisions
- Regarding the Title III power, expands the list of serious crimes which may be investigated through a judicially supervised procedure authorizing interception of wire, oral, or electronic communications to include: chemical weapons offenses, 18 U.S.C. 229; use of weapons of mass destruction, 18 U.S.C. 2332a; violent acts of terrorism transcending national borders, 18 U.S.C. 2332b; financial transactions with countries that support terrorism, 18 U.S.C. 2332d; material support of terrorism, 18 U.S.C. 2339A; and material support of terrorist organizations, 18 U.S.C. 2339B. (201)
- Regarding the Title III power, expands the list of serious crimes which may be investigated through a judicially supervised procedure authorizing interception of wire, oral, or electronic communications to also include computer fraud and abuse. (202)
- Approves FISA applications for wiretaps or physical searches when the gathering of foreign intelligence information is merely “a significant purpose” of the application as opposed to the standard before, which was that the gathering of foreign intelligence information be “the purpose.” (218)
- Other relevant provisions affecting the procedures by which authorization for surveillance is obtained, as summarized in CATEGORY 1: PART G.
Other Relevant Provisions
- Changes terrorism laws to target the so-called lone wolf terrorist or individual acting alone by extending the FISA authority to allows the government to conduct surveillance and wiretaps on suspected terrorists in the United States who have no ties to any foreign country or terrorist group. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
