Civil Liberties Online
PART F: Streamlining Surveillance Powers
Surveillance Power: Expanding the Scope of the Government?s Surveillance Power
Several of the changes made by the Act streamline the process through which surveillance authority is obtained.
Section 206 allows for roving surveillance of and eliminates the need for a new FISA order every time a subject changes location. Roving wiretaps assign the surveillance to a person, rather than a device. Also, under the Act, if assistance is needed in obtaining surveillance, a gag order may be placed on that request for assistance when "the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person." This provision is drawing some controversy as people claim that the authority under this provision is too great. PATRIOT Act Reauthorization Before the Comm. on Senate Judiciary, 109th. Cong (2005) (statement of Sen. Patrick Leahy). However, others argue that section 206 may be the appropriate response to the current anti-terrorist situation. As one commentator puts it, "unless one holds that terrorists are entitled to benefit from new technologies but law enforcement is not entitled to catch up, this is an overdue and reasonable measure." Amitai Etzioni, How Patriotic is the Patriot Act?: Freedom Versus Security in the Age of Terrorism 28 (Routledge 2004).
Furthermore, section 207 extends wiretap orders (with the agent of a foreign power as their target) for up 120 days and allows extension for 1-year periods. The section also extends physical search orders for up to 90 days and permits issuance for 120 days (with extension for up to 1 year) if an agent of a foreign power is the target. Members of the Bush administration have named section 207 as an example of a PATRIOT Act provision that has successfully facilitated the fight against terrorism and simultaneously preserved civil liberties. PATRIOT Act Reauthorization Before the Comm. on House Select Intelligence, 109th Cong. (2005) (statement of James B. Comey, Deputy Attorney Gen., United States Dep’t. of Justice).
Section 216 (which was previously mentioned in CATEGORY 1: PART B for its authorization of pen registers/trap and trace devices for electronic communications) extends the use of pen registers or trap and trace devices beyond merely the judicial district in which the order was issued. This applies only when the applicant for such surveillance is a Government attorney, rather than a state investigative or law enforcement officer. Previously, 18 U.S.C. ? 3121 allowed a court to authorize pen registers/trap and trace devices only within its own district. Section 216 adds that the court can issue an order for pen registers/trap and trace devices “anywhere within the United States, if the court finds that the attorney for the Government has certified to the court that the information likely to be obtained…is relevant to an ongoing investigation.”
In section 219, the Act allows federal magistrate judges to issue search and arrest warrants “in any district in which activities related to the terrorism may have occurred, for a search of property or for a person within or outside of the district”. E.g., In re Search Warrant, 362 F. Supp. 2d 1298, 1302 (M.D.F.L. 2003) (finding that a case about child pornography does not allow issuance of a search warrant outside of the judicial district because the case is unrelated to anti-terrorist efforts). The prior requirement that a warrant be issued in each district was widely considered unduly cumbersome. See Erwin Chemerinsky, Losing Liberties, Applying a Foreign Intelligence Model to Domestic Law Enforcement, 51 UCLA L. Rev. 1619 (2004) (concluding that section 219 of the Act is an example of an innocuous change). Section 220 also expands jurisdictional authority. Previously, relevant law required a search warrant for obtainment of unopened e-mails, and the warrant could only be issued in the district within which the property was located. 18 U.S.C. ? 2703 (a). Section 220 allows a court to issue a warrant in whatever district the internet service provider is located.
Certain provisions protect those involved in the execution of a surveillance operation. Section 222 entitles those who assist in the installation and use of pen register/trap and trace devices to reimbursement and prohibits imposition of technical obligations or requirements upon them. See In re United States, 349 F.3d 1132, 1142 (9th Cir. 2003) (briefly mentioning the PATRIOT Act as support of the fact that a car company must be compensated for assistance in a surveillance operation). Also, section 225 provides immunity for those who assist in the execution of a FISA wiretap order, FISA physical search order, or in case of an emergency FISA wiretap or search. Prior to the PATRIOT Act, the law afforded communication service providers with a good faith defense to civil or criminal liability for their cooperation in response to a warrant, subpoena, or court order. Section 815 extends the good faith defense to cover civil and criminal liability for cooperation with a request requiring them to turn over records and other evidence.
The Act, in section 205, allows the FBI to circumvent the stringent FBI hiring requirements in the case of translators for counterterrorism investigations, but, in doing so, the Director of the FBI is responsible for ensuring security in the hiring process. Also, section 208 authorizes the FISA court to expand from seven to eleven judges and mandates that at least three of the judges must live within twenty miles of the District of Columbia.
PATRIOT Act Provisions
- Allows the FBI to circumvent the stringent FBI hiring requirements in the case of translators for counterterrorism investigations. Directs that the Director of the FBI be responsible for the ensuring security in the hiring (205)
- Allows for roving surveillance of and eliminates the need for a new FISA order every time a subject changes location, a tool that had been previously been made available to law enforcement officials. (206)
- Addresses the duration of FISA surveillance and extends wiretap orders (with the agent of a foreign power as their target) for up to 120 days and allows extensions for 1-year periods (207)
- Authorizes the FISA court to expand from seven to eleven judges and mandates that at least three of the judges must live within twenty miles of the District of Columbia. (208)
- Extends the use of pen registers or trap and trace devices beyond the judicial district in which the order was issued when the applicant is a Government attorney. (216)
- Allows magistrates in terrorism cases to issue search and arrest warrants outside of their judicial district. (219)
- Eliminates the jurisdictional restrictions on access to the content of stored e-mail pursuant to a court order. (220)
- Entitles those assisting in the installation and use of pen register/trap and trace devices to reimbursement and prohibits imposition of technical obligations or requirements upon those assisting. (222)
- Provides immunity for those who assist in the execution of a FISA wiretap order, FISA physical search order, or in case of an emergency FISA wiretap or search. (225)
- Extends the good faith defense, available to communication service providers for their cooperation in response to a warrant, subpoena, or court order, to cover civil and criminal liability for cooperation with a request requiring them to turn over records and other evidence. (815)
