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HOW THE USA-PATRIOT ACT LIMITS JUDICIAL OVERSIGHT
OF TELEPHONE AND INTERNET SURVEILLANCE

The final version of the anti-terrorism legislation, the Uniting and Strengthening America By Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (H.R. 3162, the "USA PATRIOT Act") limits judicial oversight of electronic surveillance by: (i) subjecting private Internet communications to a minimal standard of review; (ii) permitting law enforcement to obtain what would be the equivalent of a "blank warrant" in the physical world; (iii) authorizing scattershot intelligence wiretap orders that need not specify the place to be searched or require that only the target's conversations be eavesdropped upon; and (iv) allowing the FBI to use its "intelligence" authority to circumvent the judicial review of the probable cause requirement of the Fourth Amendment.

The FBI already has broad authority to monitor telephone and Internet communications. Current law already provides, for example, that wiretaps can be obtained for the crimes involved in terrorist attacks, including destruction of aircraft and aircraft piracy. Most of the changes to wiretapping authority contemplated in the USA PATRIOT Act would apply not just to surveillance of people suspected of terrorist activity, but to investigation of other crimes as well. The FBI also has authority to intercept communications without probable cause of crime for "intelligence purposes under the Foreign Intelligence Surveillance Act ("FISA"). The standards for obtaining a FISA wiretap are lower than those for obtaining a criminal wiretap.

Minimal and Inadequate Standards for Access To Internet Communications Section 216 of the USA PATRIOT Act substantially changes current law. Under current law, a law enforcement agent can get a pen register or trap and trace order requiring a telephone company to reveal the "numbers dialed" to and from a particular telephone. To obtain the order, the law enforcement agent must simply certify that the information to be obtained is "relevant to an ongoing criminal investigation." This a very low level of proof, far less than the probable cause standard (probable cause that a crime has occurred, is occurring or will occur.) - a standard that must be met now to authorize access to the contents of a communication. Under the proposed Section 216, the judge must grant the order upon receiving the certification. Even if the judge disagrees, and believes that law enforcement officers are on a fishing expedition that will yield up no relevant information, the judge must issue the order. The judge is therefore not positioned to protect the privacy of a person's telephone communications; he wields a rubber stamp.

Section 216 of the USA PATRIOT Act would extend this low threshold of proof to Internet communications that are far more revealing than the numbers dialed to or from a telephone, and to portions of e-mail communications that cannot readily be separated from content. Section 216 gives law enforcement agents who obtain pen register and trap and trace orders access to "dialing, routing and signaling information." The bill does not define those terms. They would apparently apply to law enforcement efforts to determine what websites a person has visited. This is like giving law enforcement the power -- based only on its own certification -- to require the librarian to report on the books you had perused while visiting the public library. This is extending a low standard of proof -- far less than probable cause -- to "content" information even while Section 216 purports to exclude content.

The contents of a telephone call are readily separated from the telephone numbers dialed to and from a telephone. However, the same cannot be said of an e-mail address and the contents of an e-mail message. This information moves together in packets. To execute the pen register and trap and trace orders authorized by Section 216, somebody must separate the e-mail address from the contents of the e-mail message of the target. The FBI's answer to this problem is troubling. It obtains access to the entire message. Then, it asserts that it can be trusted to separate the addressing information to which it would be entitled under a pen or trap and trace order from content, and retain only the addressing information.

Moreover, the FBI sometimes uses the "Carnivore" Internet surveillance system to perform this function. Carnivore gives the FBI access not only to all of the target's communications, but to the communications of non-targets as well, who use the same Internet Service Provider as does the target. Section 216 would worsen the problem by giving the FBI access to communications of non-targets and to portions of the target's communications to which it is not entitled under the court order it obtained. The "trust us, we're the government" solution the FBI proposes is entirely unacceptable and inconsistent with the Fourth Amendment. While Section 216 requires reports on the use of Carnivore, it will likely result in more use of the system.

Permitting Blank Warrant Equivalents
Normally, court orders authorizing surveillance or a search name the "place to be searched." If information seized from that place suggests that a search of another place is warranted, a law enforcement official must apply for a new order or warrant. To prevent forum shopping by law enforcement agents, the judge having jurisdiction over the place to be searched usually authorizes the search.

Section 216 of the USA PATRIOT Act permits a federal judge or magistrate in one area to issue a pen register or trap and trace order that does not name the ISP's upon which it can be served, and that can be served on ISP's anywhere in the U.S. The judge issues the order and law enforcement agents fill in the places at which the order can be served. This further marginalizes the role of the judge. Law enforcement obtains the equivalent of a blank warrant. In addition, nationwide searches of pen register and trap and trace orders effectively insulate law enforcement from challenge in court. If a small ISP in San Francisco thinks that the FBI is illegally viewing content based on a pen register or trap and trace court order issued in New York, it would have to muster its resources to fight the warrant in New York. Given these hurdles, an ISP is unlikely to challenge an over-broad court order, or challenge FBI actions that are inconsistent with the court order.

Scattershot Intelligence Wiretaps
The Fourth Amendment to the Constitution requires that search warrants specify the place to be searched. This provides an important privacy protection. It prevents abuses such as random searches of the homes of innocent persons based on a warrant obtained to search the home of another. In the context of electronic surveillance, the specificity requirement of the Fourth Amendment means that law enforcement officers applying for a court order must specify the phone they want to tap.

In 1986, Congress amended the wiretapping law that applies in criminal cases to allow for "roving wiretaps." If law enforcement agents could prove to a judge that a person was changing telephones for the purpose of thwarting a tap of telephone lines or Internet communications specified in the order, they could obtain a "roving" wiretap that specifies a person to be tapped, not a particular telephone. In 1998, Congress relaxed the standards for roving wiretaps in criminal cases by allowing such surveillance when the target's conduct in changing telephones or facilities has the effect of thwarting the tap -- a much looser standard than the purposeful thwarting then required by the statute. The Supreme Court has not yet decided whether roving wiretaps violate the Fourth Amendment.

A roving wiretap means that law enforcement agents can listen in on any phone the target might use because he is nearby. When the target of a roving wiretap order enters another person's home, law enforcement agents can tap the homeowner's telephone. Congress attempted to lessen the possibility that law enforcement officers executing a roving wiretap would intercept the conversations of innocent persons. It required that before roving surveillance of a particular telephone line could commence, law enforcement officers must ascertain that the target is actually using the line. 18 U.S.C. 2518(12).

Section 206 of the USA PATRIOT Act would extend roving wiretap authority to "intelligence" wiretaps authorized by the Foreign Intelligence Surveillance Court. These wiretaps pose a greater challenge to privacy because they are authorized secretly without a showing of probable cause of crime. However, while Section 206 extends power to engage in roving wiretaps to the intelligence realm, it does not also require that law enforcement agents must first ascertain that the target is actually using the phone to be tapped. This Section represents a broad expansion of power without building in a necessary privacy protection. It means, for example, that if a terrorist was using the Internet connection at a public library and law enforcement was using a FISA wiretap order to monitor his Internet communications, it might continue to monitor all Internet communications at that site after the terrorist left and was no longer using the computer. Surveillance could remain in place, and innocent users would have their privacy invaded.

Evading Judicially-Determined Probable Cause Requirements
Section 218 of the USA PATRIOT Act would allow the FBI to use its intelligence gathering power to circumvent the standard that must be met for criminal wiretaps. Currently, wiretapping conducted under the Foreign Intelligence Surveillance Act, which does not contain many of the same checks and balances that govern wiretaps for criminal purposes, can be authorized only when gathering foreign intelligence information is the primary purpose of the surveillance. FISA requirements are looser than those that apply to wiretaps for criminal purposes. Most importantly, probable cause of crime need not be found by a judge in order to justify an intelligence wiretap.

Section 218 would allow use of FISA surveillance authority even if the primary purpose of the surveillance is a criminal investigation. This would allow law enforcement officials to wiretap people in the United States primarily for the purpose of conducting a criminal investigation even if they did not have probable cause of crime. The fact that Section 218 would authorize such evasion of a judicial finding of probable cause of crime only when intelligence gathering was a "significant" purpose of the surveillance does not alter this fact. Because of its importance and because the surveillance this section would authorize would apply both to electronic surveillance and to physical searches, this provision is more fully described in the ACLU fact sheet: How the Anti-Terrorism Bill Enables Law Enforcement To Use Intelligence Authorities To Circumvent Privacy Protections in Criminal Cases.

Copyright 2001, The American Civil Liberties Union

Reprinted with permission of the American Civil Liberties Union
http://www.aclu.org