Recent tragic events have brought about a rapid reconsideration of the legal restrictions placed on law enforcement and the intelligence communities. On October 26, President Bush signed into law the USA Patriot Act (Patriot Act), which makes significant changes in the legal structure within which the law enforcement and intelligence communities operate. This article focuses on the key provisions of the Patriot Act that pertain to electronic surveillance and intelligence gathering. Notwithstanding the haste with which Congress acted, the provisions of the new law relating to electronic surveillance, for the most part, are a sound effort to provide new tools for law enforcement and intelligence agencies to combat terrorism while preserving the civil liberties of individual Americans. Some changes simply update our surveillance laws to reflect the fact that we live in a digital age. Other sections expand the surveillance powers of our law enforcement and intelligence communities in ways that make sense in light of the new threats facing our country.
When we decide, however, to expand surveillance powers to track terrorists, all residents, not just the terrorists, are affected. A common problem running through many of the new authorities contained in the Patriot Act is the reliance on executive branch supervision rather than meaningful review by a neutral magistrate of the potentially highly intrusive surveillance techniques that are authorized. There are several common sense changes that could be made to the new law that would provide better protections for civil liberties without sacrificing security. Because of the rapidity with which the law was enacted, Congress, wisely, included a four-year sunset of many of the provisions of the new Act. That sunset will allow Congress to make some needed adjustments, hopefully in a calmer climate, and strengthen the protections for civil liberties without sacrificing security.
The Patriot Act substantially changes the law with respect to law enforcement access to information about computer use including Web surfing. Reaching for an analogy from the old rotary dialed telephone system, the Act extends provisions written to authorize installation of pen registers and trap and trace devices, which record outgoing and incoming phone numbers, to authorize the installation of devices to record all computer routing, addressing, and signaling information. The government can get this information with a mere certification that the information likely to be obtained is relevant to an ongoing criminal investigation.
Today, with more than fifty million U.S. households online, when more than 1.4 billion e-mails change hands every day, when computer users surf the Web and download files using phone lines, mobile devices, and cable modems, the government can learn a tremendous amount of information about you from where you shop to what you read to who your friends are through the use of so-called transactional records. The potential for abuse, for invasion of privacy, and for profiling citizens is high. That’s why it is disappointing that the authors of this provision settled for an incredibly weak standard of judicial oversight. A better analogy might have been to the provision of the Electronic Communications Privacy Act governing access to the stored records of Internet service providers, which permits a judge to satisfy herself that there are specific and articulable facts that the information sought is relevant and material to the ongoing investigation. This is a provision that Congress should review as part of its sunset process and amend.
Previously, domestic law enforcement and foreign intelligence collection operated on separate tracks. This separation was seen as necessary because of the very different legal regimes that are associated with domestic law enforcement and foreign intelligence collection. The events of September 11, which involved several individuals who had lived in our country for some time, made it clear that more cooperation between domestic law enforcement and foreign intelligence collection was necessary. Section 203 facilitates this cooperation by allowing "foreign intelligence information" gathered in criminal investigations by domestic law enforcement to be shared with the intelligence community. In this manner, section 203 enables the intelligence community access to critical information that might otherwise be unavailable.
The definition of "foreign intelligence information" contained in the Patriot Act is quite broad. Foreign intelligence is defined to mean "information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, or foreign persons or international terrorist activities." The definition goes on to specifically include information about a U.S. person that concerns a foreign power or foreign territory and "relates to the national defense or the security of the United States" or "the conduct of the foreign affairs of the United States." The sharing of such a broad range of information raises the specter of intelligence agencies, once again, collecting, profiling, and potentially harassing U.S. persons engaged in lawful, First Amendment-protected activities.
Section 203 provides some protection against abuse by requiring that when information originates from grand juries or wiretaps, the attorney general must establish procedures for the disclosure of "foreign intelligence information" that identifies a U.S. person. These safeguards need to be strengthened in two regards. First, to prevent unnecessary dissemination of information about a U.S. person to the intelligence community, such procedures should also be required for information obtained in domestic criminal investigations generally. Second, information subject to grand jury secrecy rules should only be disseminated with authorization from a court.
The Foreign Intelligence Surveillance Act (FISA) facilitates domestic intelligence gathering related to foreign powers by allowing the collection of such information without the legal restrictions associated with domestic law enforcement. Section 206 of the Patriot Act modernizes FISA wiretap authority. Previously, FISA required a separate court order be obtained for each communication carrier used by the target of an investigation. In the era of cell phones, pay phones, e-mail, instant messaging, and BlackBerry wireless e-mail devices such a requirement is a significant barrier in monitoring an individual’s communications. Section 206 allows a single wiretap to legally "roam" from device to device, to tap the person rather than the phone. In 1986, Congress authorized the use of roaming wiretaps in criminal investigations that are generally subject to stricter standards than FISA intelligence gathering, so extending this authority to FISA was a natural step.
The main difference between roaming wiretaps under current criminal law and the new FISA authority is that current criminal law requires that law enforcement "ascertain" that the target of a wiretap is actually using a device to be tapped. Section 206 contains no such provision. Ensuring that FISA wiretaps only roam when intelligence officials "ascertain" that the subject of an investigation is using a device, before it is tapped, would prevent abuse of this provision. For example, without the ascertainment requirement, it is conceivable that all the pay phones in an entire neighborhood could be tapped if suspected terrorists happened to be in that neighborhood. Bringing FISA roaming wiretaps in line with criminal roaming wiretaps would prevent such abuse and provide greater protection to the privacy of ordinary Americans.
The 1986 Electronic Communications Privacy Act granted the government the authority to delay notification for search of some forms of electronic communications that are in the custody of a third party. Section 213 statutorily extends the ability of law enforcement to delay the notice to any physical or electronic search with a showing that notice would create an "adverse result." This provision is an effort to improve the government’s ability to investigate suspected terrorists by granting law enforcement greater leeway to operate clandestinely. To a large extent, section 213 simply codifies existing law enforcement practice in a manner consistent with recent court decisions. Nevertheless, the "adverse result" standard (defined in 18 U.S.C. § 2705), by virtue of its ambiguity, creates the potential for abuse. As a result, section 213, which is not currently subject to the four-year sunset contained in the Act, should, nevertheless, be carefully reviewed at that time.
If someone unlawfully enters your home, you can ask the police to enter your premise without a warrant to investigate. Section 217 clarifies that similar authority applies to "computer trespassers." This allows law enforcement, with the permission of the owner of a computer, to monitor a trespasser’s action without obtaining an order for a wiretap. This provision constrains the ability of hackers to use computers without being detected.
Although most law-abiding computer users’ online activities will not be monitored by the government as a result of section 217, the new authority may be overbroad. A "computer trespasser" is defined as anyone who accesses a protected computer (which includes any computer connected to the Internet) without authorization. Individuals who exceed their terms of service agreements with their Internet service provider or individuals who use their computer at work to download an MP3 file could be subject to intrusive government monitoring. While the need to respond quickly to malicious hacking, such as denial of service attacks, provides a basis for this provision, section 217 should be amended to require court authorization for monitoring of individual users that exceeds forty-eight hours in duration.
Prior to the enactment of FISA in 1978, the intelligence community had virtually unchecked authority to conduct domestic surveillance of U.S. citizens and organizations. FISA created a special court to ensure that "the purpose" of domestic intelligence gathering was to obtain foreign intelligence information. The FISA court structure and sole purpose standard attempted to balance the need to collect foreign intelligence information without the constraints of the Fourth Amendment with increased protections for Americans exercising their First Amendment rights. But the sole purpose test has created operational difficulties for foreign intelligence investigations that uncover criminal wrongdoing and lead to an investigation of the criminal conduct. The events of September 11 further blur the line between foreign intelligence investigation and domestic law enforcement and the ability to jointly work the case and share information between the intelligence and law enforcement communities has become more important in the context of the investigations of Al Qaeda. Section 218 loosens the standard of a FISA investigation by requiring a showing that the collection of foreign intelligence information is "a significant purpose" rather than "the purpose" of an investigation. Section 218 is an important tool for counterterrorism but, since probable cause is not required under FISA, it also raises the possibility that U.S. citizens who are not terrorists could have their homes searched and communications monitored without probable cause. Therefore, section 218 deserves special attention when it expires in four years.
Many of the electronic surveillance provisions in the Patriot Act faced serious opposition prior to September 11 from a coalition of privacy advocates, computer users, and elements of high-tech industry. The events of September 11 convinced many in that coalition and overwhelming majorities in Congress that law enforcement and national security officials need new legal tools to fight terrorism. But we should not forget what gave rise to the original opposition—many aspects of the bill increase the opportunity for law enforcement and the intelligence community to return to an era where they monitored and sometimes harassed individuals who were merely exercising their First Amendment rights. Nothing that occurred on September 11 mandates that we return to such an era. If anything, the events of September 11 should redouble our resolve to protect the rights we as Americans cherish. Therefore, as the new powers granted under the Patriot Act begin to be exercised, we should not only feel more confident that our country has the tools to be safe but we should be ever vigilant that these new tools are not abused.