Duke Law School

Civil Liberties Online

PART C: Access to Business Records Held in Third Party Storage

Surveillance Power: Expanding the Scope of the Government?s Surveillance Power

Companies and other organizations may be compelled to surrender information about individuals for a variety of reasons and through an assortment of procedures.  The PATRIOT Act made a number of changes in this area. E.g., R.J. Cinquegrana and Richard M. Harper II, The USA PATRIOT Act: Affects on American Employers and Businesses, 46 B.B.J. 10 (2002) (highlighting sections 209, 210, 212 of the Act as examples of increased government access to information held by employers and businesses).

According to settled law, telephone company records of calls made to and from an individual’s home are not protected by the Fourth Amendment, because there is no justifiable expectation of privacy regarding these records. Smith v. Maryland, 442 U.S. 735 (1979).  Accordingly, such records can be obtained in the absence of the level of probable cause necessary for a warrant. Instead a showing of reasonable grounds to believe that the information sought is relevant to a criminal investigation will entitle officers to a court order mandating access to electronic communications in remote storage for more than 180 days or to communications records.  18 U.S.C. ? 2703(a)(d) (1986). Officers can also obtain a designated amount of records information (subscriber names and addresses, telephone numbers, billing records, and the like) using an administrative, grand jury, or trial court subpoena. 18 U.S.C. ? 2703(c)(2). 

USA PATRIOT expands these authorities.  Section 210 of the Act streamlines the investigative process by adding credit card and bank account numbers to the information law enforcement officials may subpoena from a communications service provider’s customer records.  Furthermore, section 212 permits communication service providers to disclose either customer records or the content of their customer’s communication in any emergency situation that involves and immediate danger of physical injury.  Courts have used their discretion to determine what constitutes an emergency situation.  See In re United States, 352 F. Supp. 2d 45 (D. Mass., 2005) (holding that a kidnapping situation involving ransom was an emergency situation); but see Freedman v. Am. Online, Inc. 303 F. Supp. 2d 121 (D. Conn. 2004) (finding that since the ISP delayed their response to the information request, the situation was not an emergency one).

Another important change for communications providers is that section 209 of the Act makes access to voice mail information subject to the same procedures as those for access to stored e-mail.  Prior to the PATRIOT Act, some courts granted access to voice mail only with a wiretap order rather than with the less-demanding application for a warrant.  See United States v. Smith, 155 F.3d 1051 (9th Cir. 1998) (finding that the FBI’s voicemail evidence was inadmissible since it was obtained without a wiretap order).  Pursuant to section 209, voicemail messages are now subject to a warrant.  See Konop v. Hawaiin Airlines, Inc., 302 F.3d 868 (9th Cir. 2002) (discussing the effects that section 209 has on voicemail message information).

Section 215 expands the power of the FBI under FISA, 50 U.S.C. ?1861. Before, the FBI could compel the disclosure of certain business records only when it had "specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of the foreign power." After this PATRIOT provision, the FBI need only specify in a FISA request that the "records concerned are sought for an authorized investigation" consistent with the purposes of the section of the PATRIOT Act. Specifically, the Act requires a showing that the records are sought to "obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." 50 U.S.C. ? 1861 (b)(2). The FISA authority had previously permitted FBI such access to a fairly narrowly defined list of third-party business records but the Act now authorizes it for "any tangible item" including medical, library and bookstore records. The provision also imposes a lifelong gag order on the record holders. They are thereby prevented from alerting the people whose records were requested that such activity had taken place. This section of the Act also allows Assistant Special Agents in charge of the FBI field offices to apply for these court orders, whereas previously only senior FBI officials could apply. The secrecy surrounding section 215, discussed in CATEGORY 1: PART G and supported with case law, has drawn much criticism for the PATRIOT Act.

The changes made by section 215 of the USA PATRIOT Act have proven highly controversial. E.g., Michael J. Woods, Counterintelligence and Access to Transactional Records: A Practical History of USA PATRIOT Act Section 215, 1 J. Nat'l Security L. & Pol'y 37 (2005) (arguing that of the Act's increased access to transactional information, section 215 is the most unrestricted provision); see e.g., Using Open-source Information Effectively Before the House Homeland Security Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment, 109th Cong. (statement of Joseph Onek, Senior Policy Analyst of the Open Society Institute) (attesting to the disturbingly unchecked authority that section 215 affords to the government). In addition to the librarian groups prominently organized against this law, some physicians have also expressed concern. Michael Sander, Patriot Act Foes Draw Doctors To Their Cause, CQ Weekly, Sept. 19, 2005, at 2473. Under this authority granted by section 215 of the USA PATRIOT Act federal investigators can demand a doctor's patients' records, leaving some physicians worried about how the might affect their patient's willingness to disclose important medical information or even to seek treatment at all. Id. Critics of the Act suggest that this provision lacks sufficient safeguards, for example, requiring approval by a judge. See Christopher Schroeder, Will the Sun Set on the Patriot Act?, Duke Law Magazine, 2005, at 27; see alsoMartha Minow, What is the Greatest Evil?:The Lesser Evil: Political Ethics in an Age of Terror. By Michael Ignatieff., 118 Harv. L. Rev. 2134, 2146 (2005) (book review) (criticizing the excessive authority section 215 affords to government officials since other less pervasive means, such as those used in Great Britain, were not tested prior to the enactment of this provision; Britain's Anti-Terrorism Act exempts library records from the business records that can be searched easily by the government and imposes a least restrictive means analysis before allowing a requested investigation).

In addition to these changes expanding the scope of subscriber information available to law enforcement, the PATRIOT Act also altered the requirements for when subscribers must be notified of these information requests.  Prior to the Act, there was no requirement for subscriber notification in records cases and courts could have delayed customer notification in the face of exigent circumstances or if notice was likely to seriously jeopardize the investigation or unduly delay the trial. 18 U.S.C. ? 2705.  Although there may have been confusion as to whether customer notification is always mandated, the courts have determined that the subscriber need not be notified in certain instances.  See In re United States, 158 F. Supp. 2d 644, 648-9 (D. Md. 2001) (allowing no notification if accompanied by a valid court order).  The USA PATRIOT Act expanded the instances in which non notification is permissible.  Section 211 allows cable companies that offer communication services to disclose subscriber identifying information without customer approval.  This was previously illegal.  47 U.S.C. ? 551 (2005).  

PATRIOT Act Provisions

  • Makes access to voice mail information subject to the same procedures as those for access to stored e-mail of  (209)
  • Authorizes the use of administrative and grand jury subpoenas to obtain information about temporarily assigned network addresses and user’ billing records without having to apply to the courts (210)
  • Adds the means and source of payment to the scope of records that may be subpoenaed. (210)
  • Allows cable companies that offer communication services to disclose customer identifying information without customer approval. (211)
  • Makes it clear that the cable rules apply when cable television viewing services are involved but that chapter 121 rules of communication apply when a cable company or anyone else provides communications services. (211)
  • Permits communications service providers to disclose either customer records or the content of their customers’ communication in any emergency situation that involves an immediate danger of physical injury. (212)
  • Expands the power of the FBI under FISA, 50 U.S.C. ?1861. Whereas before, the FBI could compel the disclosure of certain business records only when it had “specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of the foreign power,” after this provision, the FBI need only specify in a FISA request that the “records concerned are sought for an authorized investigation” consistent with the purposes of the section of the Patriot Act. Title 50 U.S.C. ?1861 as amended by the Patriot Act also contains a subsection prohibiting anyone served with a section 215 order from disclosing that the FBI sought or obtained information under the provision. (215)
  • Other relevant provisions affecting the procedures by which authorization for surveillance is obtained, as summarized in CATEGORY 1: PART G.

Cases