On October 29,
2001, six weeks after the tragic events of September 11, 2001, the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (PATRIOT) Act, Pub. L. No. 107-56, 115 Stat. 272 (2001), was
signed into law by President Bush. The
Administration, and many Republican members of Congress, hailed the bill as a
show of overwhelming bipartisan support for the “new tools,” provided by Title
II of the PATRIOT Act to aid intelligence and law enforcement officials in
preventing future terrorist attacks on American soil. However, the final Senate vote on H.R. 3162
(98-1) masked the grave concerns of many members of both parties from both
houses that Title II’s changes to current surveillance laws and procedures went
too far, did not provide adequate judicial oversight, and were passed in an
atmosphere of extreme political pressure and time constraints. For these reasons, numerous members of the
House and Senate made it very clear in the record that, despite great concerns
about the Act’s possible violations of average citizens’ civil liberties, their
support for the Act was based on the need to compromise with the Administration
to ensure the safety of the American people.
These members also stressed that the provision in Title II, taken from
the earlier H.R. 2975, that would sunset many of its controversial provisions
on
With
Title II’s sunset date just one year away, debate over the renewal of the
PATRIOT Act’s enhanced surveillance provisions has already begun. While legislative attempts to repeal Title
II’s sunset provision, such as S. 2476[1],
have received little support or attention, during his recent campaign,
President Bush not only called on Congress to renew the PATRIOT Act, but
claimed that attempts to correct some of its most worrisome provisions “weaken”
and “dilute” the Act. President's Remarks on Homeland Security in
However, many members of
Congress, particularly those on the House and Senate Judiciary Committees, take
a different view. Several bills to add
judicial oversight or additional reporting requirements have been introduced in
both houses since the PATRIOT Act’s passage.
The most notable of these, the Security and Freedom Ensured (SAFE) Act,
S. 1709 and H.R. 3352, was introduced into both houses in October 2003, was
subject to a veto threat by the Administration upon announcement, and was also the
object of September 22, 2004 hearings held by the Senate Judiciary Committee. Testimony from those hearings and the Senate
record on the SAFE Act show that its supporters are dedicated to addressing
citizens’ civil liberties concerns.
Appalled that the Administration’s brushed off civil liberties concerns,
Senator Feingold (D-WI), a member of the Senate Judiciary
Committee and Chair of the Constitution Subcommittee, called on Congress to
remember that, “The Federal Government should be responsive and
accountable to the people. But most importantly, the Federal Government should
respect and uphold the Constitution.” 149 Cong. Rec. S12990-01, S12991. Moreover, they are frustrated
by the Administration’s call for renewal and the Justice Department’s lack of cooperation
in providing Congress with information for it to conduct oversight of the PATRIOT
Act. Echoing the sentiments of other
SAFE Act supporters, Senator Durbin (D-IL) characterized the Justice Department
as having “reneged on their commitment to Congress,” and pointed out that
Ashcroft rarely appears before Congress and that the “Justice
Department regularly fails to answer congressional inquiries, either arguing
that requested information is classified, or simply not responding at all.” 149 Cong. Rec.
S12377-01, S12386.
If this conflict is any
indication of what is to come when Congress begins to hold hearings and debates
to discuss the renewal of the PATRIOT Act’s enhanced surveillance provisions,
it promises to be a long, thorough, and adversarial process this time around. Together with the strong substantive and
procedural reservations of many members of Congress in passing the PATRIOT Act
and their reliance on the sunset provision to force future congressional
review, SAFE Act supporters’ current focus on the civil liberties concerns of
citizens and their sense of betrayal at the hands of the Administration may
indicate that Title II’s days are numbered.
From the PATRIOT
Act Congressional Record, it is apparent that the Act’s primary purposes were
to facilitate information sharing between the intelligence and law enforcement
communities, to update electronic surveillance laws and procedures to address
new technologies, including the Internet, e-mail and instant messaging, and to
bring intelligence surveillance laws in line with similar criminal surveillance
laws. Senator Hatch (R-UT), Chairman of
the Senate Judiciary Committee and a co-sponsor of S. 1510, H.R. 3162’s
predecessor, noted, “It is simply a disgrace that we have not acted to
modernize the laws currently on the books which govern such surveillance, laws
that were enacted . . . well before the advent of cellular telephones, e-mail,
and instant messaging.” 147 Cong. Rec.
S10547-01, S10560.
Senator Leahy (D-VT), the ranking Democrat on the Senate
Judiciary Committee and the main Senate negotiator with the Administration on
this bill, agreed that “In some respects, the
changes made are appropriate and important ones to update surveillance and
investigative procedures in light of new technology.” 147 Cong. Rec.
S10547-01, S10552. However, Leahy also maintained
that he had “deep concerns” that Congress may be expanding electronic
surveillance laws “without adequate checks on how information may be handled
and without adequate accountability in the form of judicial review.”
Although most of Title II’s provisions garnered some criticism from various members of the House and Senate, some provisions were more controversial than others. Information sharing and roving surveillance authority were among the most controversial and serve as good illustrations of the kinds of substantive and procedural deficiencies within and surrounding the PATRIOT Act. Together, these deficiencies should render it relatively easy for Congress to decide to let these provisions expire and start anew in an atmosphere free of political pressures and fear of imminent attack.
I. Information Sharing Under the
PATRIOT Act
In
the days following
However, Congress’ acceptance of the Administration’s
proposal to increase information sharing was not without some
reservations. There were great concerns
that the PATRIOT Act’s provisions did not allow for adequate judicial oversight
of information disclosure and that sharing would lead to an improper conflation
of the roles and purposes of the intelligence and law enforcement divisions of
the Justice Department. Although it
appears that Congress would have been willing to grant the Administration these
powers in the name of preventing more attacks, in the end, Congress came to
rely on the PATRIOT Act’s sunset provision to review the effects of such
sharing and possibly discontinue these powers in the future.
A. Information
Sharing Under the Wiretap Act
§203(b) of the PATRIOT Act amended the Wiretap Act, 18 U.S.C. §§2510-22, to allow investigative or law enforcement officers to disclose the contents of electronic communications acquired from a wiretap to a wide range of Federal law enforcement and intelligence officials, provided that the contents include foreign intelligence information. [2] 18 U.S.C. §2517. While this change seems reasonable, since any such information would have been obtained under a warrant issued according to a criminal investigation standard of probable cause and would be necessary to prevent further attacks, it lacks the judicial review required of other kinds of wiretap disclosures. Representative Nadler (D-NY), a member of the House Judiciary Committee, pointed out that, under current law, a judge gets to decide if it is appropriate to share information with other agencies. However, §203(b) allows an agent to make that decision independently and only requires the agent notify the issuing court later, if an agency intends to use that information in a criminal proceeding. 147 Rec. H6726-04, H6765. Although it may be necessary to pass along foreign intelligence information quickly to prevent an attack, § 203(b) leaves open the possibility that, if it is never used in a criminal proceeding, the sharing of some information will never be reviewed by a judge to ensure that the information was indeed “foreign intelligence information,” taking it outside the standard §2517 sharing requirements.
Senator Leahy,
also finding fault with this provision, noted that just the year before the
Justice Department had opposed such a change, assuring Congress that, “law
enforcement agencies have authority under current law to share title III
information regarding terrorism with intelligence agencies when the information
is of overriding importance to the national security.” 147 Cong. Rec.
S10547-01, S10555, quoting Letter
from Robert Raben, Assistant Attorney General,
“For
this reason, and others, the Justice Department at the time opposed an
amendment proposed... to the "Intelligence Authorization Act for FY 2001”
that would have allowed the sharing of foreign intelligence and
counterintelligence information collected from wiretaps with the intelligence
community. I deferred to the Justice Department on this issue and sought
changes in the proposed amendment to address the Department's concern that this
provision was not only unnecessary but also "could have significant
implications for prosecutions and the discovery process in litigation",
"raises significant issues regarding the sharing with intelligence
agencies of information collected about United States persons" and jeopardized
"the need to protect equities relating to ongoing criminal investigations.”
Since it appears that the law enforcement community already had the ability “granted” by §203(b), it is difficult to see why this provision should not be allowed to lapse. It does not provide for judicial oversight in certain cases and, at least according to the former Administration, would have an adverse impact on both the intelligence and law enforcement communities.
According
to Leahy, the Administration initially accepted, but then offered three reasons
for rejecting the Senator’s proposal to require agents who shared information without
a court order under §203(b) to notify the judge who initially ordered the
wiretap “as soon as practicable after the fact.” 147 Cong. Rec.
S10547-01, S10556. They claimed
that courts would prevent law enforcement officials from disclosing information
that the intelligence community needs, that courts may not be secure enough to
receive foreign intelligence, and that “the President's constitutional powers
under Article II give him authority to get whatever foreign intelligence he
needs to exercise his national security responsibilities.”
However, Leahy did
gain some ground by getting the Administration to use the term “foreign
intelligence,” rather than “national security” in describing the kind of
information that could thus be shared without a court order or judicial
review.
This final result is a prime example of the kinds of political and time pressures Congress was facing during negotiations with the Administration and during debates in the House and Senate. Throughout the Senate record, Leahy makes several references to provisions with which he was uncomfortable, but that he could not get the Administration to change. See 147 Cong. Rec. S10547-01, S10548, S10552, S10554, S10555, S10559. Also, although he voiced support for them in spirit, Leahy said in his remarks on all three amendments offered to S. 1510 by Senator Feingold, “it is unfortunate that the administration did not accept this amendment,” indicating that he, like many other members of Congress, was dedicated to the bill itself, rather than ensuring particular provisions did not leave room for civil liberties violations. 147 Cong. Rec. S10547-01147, S10573, S10577, S10586.
This willingness
to support the bill despite its imperfections and the Administration’s control
over the final product is further reflected in the fact that S. 1510 did not
contain the sunset provision that many Senators cited as their reason for supporting
H.R. 3162, which became the PATRIOT Act.
The four-year sunset provision in H.R. 3162 was a compromise on the
five-year sunset provision from H.R. 2975, which was the first working
incarnation of the PATRIOT Act and the only version of the bill to be marked up
in a congressional committee. However,
the version worked on and passed unanimously by the House Judiciary Committee on
Considering that law enforcement could already share foreign intelligence information, that §203(b) provides for no judicial review in many cases, that the Administration had no persuasive reason for denying judicial review, and that Congress was pressured into accepting this due to the national emergency, Congress should allow §203(b) to expire.
B. Information Sharing Under the
Foreign Intelligence Surveillance Act of 1978
The Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. §1801 et seq., was originally enacted to allow intelligence officials to conduct surveillance to collect foreign intelligence information without having to meet the Fourth Amendment probable cause standard. Since the goal of FISA investigations was preventing terrorist attacks and clandestine intelligence activities, rather than criminal prosecution, applications for FISA electronic surveillance authority only had to meet a lower probable cause standard. 47 Cong. Rec. S10547-01, S10593. The FISA established a Foreign Intelligence Surveillance Court (FISC), comprised of seven district court judges appointed by the Chief Justice of the United States to review, ex parte, FISA applications to ensure they met the requirements of 50 U.S.C. §1804. Applications had to identify the surveillance target and present facts justifying the applicant’s belief that the target was a foreign power or an agent of a foreign power and that the facility or place to be monitored would be used by the target. Additionally, §1804 required that applicants state the “minimization procedures”[3] to be used, and certify that the information sought was foreign intelligence information and that the sole purpose of the surveillance was to obtain such information.
§218 of the PATRIOT Act, despite being the shortest section of Title II, made the greatest change to current law by stating that applicants need only certify that obtaining foreign intelligence information is “a significant” purpose of FISA electronic surveillance, rather than “the” purpose. Although this was a slight improvement on the Administration’s initial request to change the requirement to just “a” purpose, Congress fully realized that this provision was intended to change the focus of FISA investigations. It was intended to allow applicants to obtain FISA electronic surveillance authorization when the primary purpose is to obtain information relating to any Federal crime, as long as obtaining foreign intelligence information is a secondary purpose.
Representative
Sensenbrenner, Chairman of the House Judiciary Committee and the sponsor of
H.R. 2975, pointed out that, often, common criminal investigations “will end up
leading into material relating to how terrorists finance themselves or how
terrorists act and further criminal activity as well.” 147 Cong.Rec. H6726-04, H6774. He stressed that, for example, any foreign
intelligence information acquired during ordinary drug investigations may not
be shared quickly enough for intelligence officials to stop a terrorist attack.
While Congress was
fully aware that §218 was intended to allow “fishing expeditions” in criminal
waters for foreign intelligence information without standard probable cause, I
doubt they were fully aware of where the Administration was really going with
this subtle change in the wording of §1804.
From 1978 to 1995, the FISC issued thousands of orders following its
standard minimization procedures, required by §1804(a)(5) and defined in §1801(e). These procedures were heavily weighted toward
acquiring, retaining and disseminating foreign intelligence information, but specifically
called for the minimization of any non-foreign intelligence information
acquired, since such information was acquired without a standard showing of
probable cause. In re All Matters Submitted to the
Thus, there has always
been what the Administration calls a “wall” between the intelligence community
and the law enforcement community due to the fact that the intelligence community
is exempt from standard probable cause requirements. Since FISA minimization procedures have
always allowed intelligence officials to give law enforcement evidence of
crimes and the Justice Department’s prior view of the Wiretap Act allowed for
law enforcement to give foreign intelligence information to intelligence
officials, this term seems to be an exaggeration of the truth behind
pre-PATRIOT Act information sharing. In
fact, in 1995, former Attorney General Reno issued supplementary Procedures for Contacts Between FBI and
Criminal Division Concerning Foreign Intelligence and Foreign
Counterintelligence Investigations, which mandated that the FBI and the
Office of Intelligence Policy and Review (OIPR) provide the Criminal Division
(CRM) with any acquired “facts and circumstances that reasonably indicate that
a significant federal crime has been, is being, or may be committed.” 1995 Procedures (http://www.fas.org/irp/agency/doj/fisa/1995procs.html). The 1995 Procedures also set out a detailed
protocol for information sharing that ensured the CRM had all the relevant
information the FBI acquired as quickly as possible and allowed the CRM to
advise the FBI on how to best preserve evidence for later prosecution, all
under the supervision of the OIPR.
“on the
operation, continuation or expansion of FISA electronic surveillance or
physical searches. Additionally, the FBI and Criminal Division should ensure
that advice intended to preserve the option of a criminal prosecution does not
inadvertently result in either the fact
or the appearance of the Criminal Division's directing or controlling the FI or FCI investigation toward law enforcement objectives.”
Relying
on the fact that FISA electronic surveillance can now be conducted primarily
for law enforcement purposes, in 2002, Attorney General Ashcroft issued new Intelligence Sharing Procedures for Foreign
Intelligence and Foreign Counterintelligence Investigations Conducted by the
FBI. See http://www.fas.org/irp/agency/doj/fisa/ag030602.html. Although later reversed by the Foreign
Intelligence Surveillance Court of Review’s first opinion since the FISA was
enacted in 1978, the FISC, having reviewed and issued thousands of orders since
then and headed by a conservative Justice in his seventh year with the FISC, felt
it necessary for the first time to publicly
modify proposed minimization procedures.
In its first published opinion, the FISC read Ashcroft’s procedures as openly
allowing “criminal prosecutors to have a significant role in directing FISA
surveillances . . .” In re All Matters Submitted to the FISC,
218 F.Supp.2d at 623. The Court also
found the procedures to be “designed to enhance the acquisition, retention and
dissemination of evidence for law
enforcement purposes,” rather than to obtain foreign intelligence
information, as required by §1801(h) and “designed to amend the law and substitute
the FISA for [Wiretap Act] electronic surveillances . . .”
“ensure
that law enforcement officials do not direct or control the use of the FISA
procedures to enhance criminal prosecution, and that advice intended to
preserve the option of a criminal prosecution does not inadvertently result in
the Criminal Division’s directing or controlling the investigation using FISA .
. . surveillances toward law enforcement objectives. In re
Sealed Case, 310 F.3d 717, 720 (FISCR 2002).
The Court of
Review strongly disagreed with the FISC due to the fact that the PATRIOT Act
had changed the law to allow the use of FISA surveillance authority primarily
for law enforcement purposes. The Court
pointed out that the leading case rejecting the idea that “if surveillance is
to any degree directed at gathering foreign intelligence, the executive may
ignore the warrant requirement of the Fourth Amendment,” concerned surveillance
conducted before the FISA.
Consequently, the
Court of Review reversed the FISC’s modification of the 2002 Procedures, allowing
law enforcement to control and direct intelligence investigations to a
substantial degree, in direct contravention of the purposes for which the FISA
was originally enacted. Senator Leahy
pointed out that the FISA was passed due to the findings of a Select Committee to Study Governmental
Affairs with Respect to Intelligence Communities. 147 Cong. Rec.
S10990-02, S10993. This Committee
found that the FBI had long been compiling massive files on the political
activities and opinions of Americans, such as Martin Luther King, Jr. and
women’s liberation activists, and had been passing it on to law enforcement and
the White House as a matter of course.
Many members of Congress were upset that §218 did not seem directed at gathering foreign intelligence info, but toward getting around having to show probable cause to conduct average criminal investigations. However, due to time constraints and concern that insisting on amendments could jeopardize the entire bill, members could only clarify their understanding of the provision and its problems in the record, and look to the sunset provision to assess the effects of this change in the future.
II. Roving FISA Surveillance
Authority
§206 of the PATRIOT
Act raised concerns in both houses that, by adding roving surveillance
authority to the FISA, it could subject innocent Internet users to improper and
unsupervised surveillance. 147 Cong. Rec. S10547-01, S10576. §206 amended 50 U.S.C. §1805 so that,
under orders issued by the FISC, Federal officers can enlist the help of unspecified
persons or communication service providers with facilities or at places
believed to be used, or about to be used, by the surveillance target, provided
the Court finds a target’s actions “may have the effect of thwarting the
identification of a specified person [or service provider].” 50 U.S.C. §1805(c)(2)(B). Thus, if the Court finds that a target’s
actions prevent the identification of specific facilities or places at which to
conduct surveillance and, therefore, whom the officers may need to ask for help,
FISA surveillance authority attaches to the target of the investigation, wherever
that target may be found, rather than a particular facility or place.
50 U.S.C. §1804(a)(4)
requires applications for FISA surveillance authority to state facts and
circumstances that justify the applicant’s belief that “the target of the
electronic surveillance is a foreign power or an agent of a foreign power,” [4]
and §1805(a)(3)(A) requires the FISC to find FISA probable cause to believe the
target is such a person, “provided that no United States person may be
considered a foreign power or an agent of a foreign power solely upon the basis
of activities protected by the First Amendment . . .” While the FISA undoubtedly strives to protect
innocent persons from becoming the target of FISA surveillance, the addition of
roving surveillance authority to the FISA creates the risk that the electronic
communications of innocent, non-foreign agent US persons who use the same
computers as a target or use computers at the same location as a target, may be
surveilled by Federal officers under the lower-standard FISA order. However, this windfall surveillance would be without
probable cause required by the Fourth Amendment for non-foreign intelligence
investigations, without a relevant warrant, and without any judicial
review.
The wisdom of §206 was questioned by Representative Paul (R-TX), who pointed out that, “The utility of [roving wiretaps] in catching terrorists is questionable to say the least. After all, terrorists have demonstrated they are smart enough not to reveal information about their plans when they know federal agents could be listening.” 147 Cong.Rec. H6726-04, H6769. This suggests that roving FISA surveillance authority (and other similar powers) is also likely to have a disproportionate impact on non-target users who would not suspect they are being surveilled and would not take precautions to watch what they say or encrypt their communications.
Senator Feingold
attempted to offer an amendment to S. 1510 that would limit such surveillance
to when “the target's presence at the place where, or use of the facility at
which, the electronic surveillance is to be directed has been ascertained by the
person implementing the order . . .” 147 Cong. Rec. S10547-01, S10575. He pointed out that §206 was intended to
confer authority similar to that available in ordinary criminal investigations
under the Wiretap Act, 18 U.S.C. §§2510-2522.
Feingold reasoned that since the Wiretap Act contains a requirement
similar to that of his amendment, FISA roving surveillance should also be subject
to that same requirement.
Similar to FISA §1804(a)(4)(B) and § 1805(a)(3)(B), the
Wiretap Act requires a description of the facilities or place to be surveilled
and a finding of probable cause that the facilities or place is being, or is
about to be, used in connection with a particular offense. §§2518(1)(b)(2) and (3)(d). Here, the only real differences are that the
target is an average criminal, rather than a foreign power or an agent of a
foreign power, and that the probable cause standard is that required by the
Fourth Amendment. Like the revised FISA,
the Wiretap Act also contains an exception to these description requirements
when “the applicant makes a showing that there is probable cause to
believe that the person's actions could have the effect of thwarting
interception from a specified facility.”
§§2518(11). However, §2518(12) requires
that the surveillance not begin “until the place where the communication is to
be intercepted is ascertained by the person implementing the interception
order.”
Feingold noted
that the Senate Judiciary Committee report regarding §2518(12) stated that, “where
the federal government has been successful in obtaining a relaxed
specificity order . . . [i]t would be improper to use this expanded
specificity order to tap a series of telephones, intercept all conversations
over such phones and then minimize the conversations collected as a result.” 147 Cong. Rec.
S10547-01, S10575-S10576. This suggests
that, by extending the same powers to the FISA using substantially similar
language, relaxed specificity FISA investigations should also be limited to
when the person implementing the order has ascertained that the facility or
place is being used, or is about to be used, by the target. Otherwise, there is a risk communications
will be improperly intercepted when the target is not present, violating the
legitimate privacy expectations of users to whom the FISA order in question
does not apply, and skirting the Fourth Amendment requirement for a warrant
issued upon probable cause.
Senator Hatch, the only member to make a substantive argument
against this amendment, agreed that the purpose of §206 is to “give
counter-terrorism investigators as much
authority to conduct wiretaps as their counterparts have in conducting
criminal investigations.” 147 Cong. Rec. S10547-01, S10577 (emphasis added). However, he denied that an
ascertainment requirement existed for criminal investigations and insisted that
it would be “operationally unworkable” since “the way that roving orders are
implemented, requires that law enforcement officers have the ability to spot
check several different telephones in order to determine which one is being
used by the target of the order.” Id. In addition to his remarks being refuted by a
fair reading of §2518(12) and the Senate Judiciary Committee’s explanation for
the ascertainment requirement, Hatch’s argument against the ascertainment
requirement does not hold in the context of intercepting Internet
communications because of the technological reality behind Internet
surveillance.
Since 1999, FBI Internet surveillance has been conducted
using a system called the DragonWare Suite.
The main component, called Carnivore, is a packet sniffer system that
actually captures Internet communications and can be run to either catch all relevant
packets or just those containing specific kinds of data. Carnivore can tell agents the identity of
e-mail senders and recipients, the content of e-mails, and what web sites and
areas of those sites are visited. Whenever
a user connects to the Internet, they join a network maintained by an Internet
service provider (ISP), which connects with other ISP’s networks to create the
Internet. Carnivore must be located at
the ISP that the target is using to connect to the Internet for the system to
monitor the target’s communications. The
agents must tell Carnivore which Internet Protocol (IP) addresses to monitor,
so that other communications coming through the ISP’s network will not also be
captured. As communications come through
the network, Carnivore looks at each packet and copies any packets with the IP
addresses it was instructed to look for.
After the copies are made, if the agents have set up Carnivore to filter
out any kinds of data packets, Carnivore will determine what the packets
contain and retain packets with the proper protocol. This data is saved and can be retrieved by
agents every hour to every few days. How Carnivore Works, Jeff Tyson, HowStuffWorks.com (http://computer.howstuffworks.com/carnivore.htm).
The problem with roving surveillance of electronic
communications is that the agents will have to set up Carnivore systems at the
ISP that the target is using in order to intercept those communications. This means the agents will have to either determine
in advance what system the target is going to use or have Carnivores set up at
every possible ISP. These are the kinds
of “facilities” at which the FISA and the Wiretap Act enable agents to set up
Carnivore systems, even if not designated in the surveillance orders, provided
that the court finds the target’s actions may thwart the identification of a
particular ISP’s network to be monitored.
Aside from the problem of knowing where to set up the
Carnivore system, agents face the additional problem of ensuring that they have
the exact IP address the target will use to send and receive
communications. However, it is very rare
that a location with multiple computers will provide a “public” IP address for
each computer, one that is actually on the internet and remotely
accessible. More typically, through
network address translation (“IP masquerading”), any number of “private”
addresses will share the same public IP address, which are not directly on the
internet or remotely accessible. Even if
a location has multiple IP addresses, it is likely that agents will have to
configure Carnivore to look at all of them to be sure the target’s
communications are intercepted.
Thus, it is highly likely that, if agents know or suspect a
target will use a computer in a location that has multiple computers, such as a
library, a computer lab, a workplace, an Internet cafe or a location with
wireless Internet service used by thousands of students every day, all of the
communications sharing that IP address, or even all of the communications at
that location, may be intercepted by Carnivore.
Agents will then have to examine all of these communications to try to
identify the target’s communications.
This is the kind of blanket “wiretap” and subsequent minimization the
Senate Judiciary Committee denounced in granting roving wiretap authority under
the Wiretap Act. Although it is
technologically impossible in many situations to monitor the Internet
communication of only the surveillance target (especially if the target is
aware of the above limitations on Carnivore’s monitoring capabilities and uses
computers in such locations), it is entirely possible for agents to only
conduct Internet surveillance when they know the target is at the location
being monitored or using the ISP’s network.
If agents have a good enough description of the target to know from which
facility or place s/he will be communicating, they should be able to ascertain
when the target is present, to avoid monitoring the communications of innocent Internet
users at a particular location for hours or days at a time. While this may seem
like a heavy burden, Senator Feingold made a strong point that if the
ascertainment requirement “significantly impaired” criminal surveillance
investigations, Congress “should be shown specific evidence of its
shortcomings. But if it has not been impaired, then there is no reason not to
include a similar safeguard in the roving wiretap authority under FISA.” 47 Cong. Rec.
S10547-01, S10576.
Although Feingold’s arguments in favor of his amendment were
persuasive, Hatch’s counter-arguments did little to detract from them and the
technological facts point in favor of limiting surveillance to when the target
is present, the final version of the PATRIOT Act contained no ascertainment requirement
similar to that of § 2518(12). Instead
of losing in a substantive debate, Feingold’s amendment was tabled upon a
motion by Senator Daschle (D-SD), the sponsor of S. 1510. Daschle stated that, while “sympathetic” to
the amendment, he was much more interested in “arriving at a product
that will bring us to a point where we can pass something into law,” and
preserving the “delicate balance” reached with the Administration rather than
opening the bill up to amendments “in a way that might destroy that delicate
balance.” 47
Cong. Rec. S10547-01, S10577. Thus, a provision
that had great potential to violate the privacy rights of innocent Internet
users, that would have a disproportionate effect on such users and that could
have been easily amended using language from the provision that inspired §206,
was allowed to pass due to fears that any change from the Administration’s
formulation would jeopardize the entire bill and prevent the Senate from
passing S. 1510 that night.
Senator Specter (R-PA), another member of the Senate
Judiciary Committee, like many other House and Senate members on the
legislative record during for the PATRIOT Act, took issue with this kind of
process, saying:
“ . . .when the majority leader says he
is concerned about procedure and not about substance, we are regrettably
establishing a record where we have not only not shown the deliberative process
to uphold constitutionality, but we are putting on the record a disregard for
constitutionality and elevating procedure over substance, which is not the way
you legislate in a constitutional area.”
47 Cong.
Rec. S10547-01, S10578. Specter’s
criticism of the process under which S. 1510 was considered and the tabling of
not only this, but the two other amendments offered by Senator Feingold (the
only amendments offered in the Senate), are especially telling since S. 1510
did not contain a sunset provision. This
indicates that the Senate was under such pressure and felt the need to provide
the Administration with enhanced surveillance laws and procedures so strongly, that
they were willing to enact permanent provisions into law that could infringe on
the privacy rights of innocent Internet users, as well as users of other forms
of communications technologies. While
this may reflect the fact that Congress and the Administration agreed that
protecting the American people was of paramount importance, Senator Specter
does have a point in that Congress has an abiding responsibility to the civil
liberties of the American people and a duty to take seriously the
constitutionality of the laws it enacts, regardless of the circumstances.
Although the issue of roving FISA surveillance authority was
not raised during the Senate’s discussion of H.R. 3162, SAFE Act §2 contains an
amendment to §1805 substantially similar to Senator Feingold’s. Without
repealing the PATRIOT Act’s creation of roving surveillance authority in FISA
investigations, §2 would require the person conducting the surveillance to
ascertain the presence of the target before beginning. Thus, the chances of the person conducting
the surveillance intercepting the electronic communications of innocent persons
are greatly reduced, but intelligence officials retain the authority to monitor
the communications of foreign powers or agents of foreign powers, who attempt
to evade surveillance, for foreign intelligence information.
Since the only real opponents of the comparable Feingold amendment were the political and time pressures the
Senate was facing in October 2001, there seems to be little reason for Congress
to not fix what the PATRIOT Act left unfinished. If the SAFE Act becomes law
before December 31, 2005, it is very likely that Congress will allow §206 to
remain in effect, since it will no longer pose a significant threat to the
privacy rights of innocent Internet users.
If the SAFE Act fails, it is likely that §206 will be allowed to lapse
in favor of later legislation that respects the balance that is possible in this
area.
Conclusion
During his August 20, 2004 testimony
before the Senate Judiciary Committee regarding the 9/11 Commission Report as
related to technology and privacy, the Commissioner of the National Commission
on Terrorist Attacks, Slade Gorton, outlined the 9/11 Commission’s proposed
test to be used in considering the renewal of the PATRIOT Act and any such
future legislation. The test puts the
burden of proof on the legislation’s supporters to show that the authority
sought “would in fact materially enhance national security and that there will
be adequate supervision of the exercise of that power . . . to ensure
protection of civil liberties.”
Under this test, I would say that
both §§203(b) and 218 fail both parts of this test since they only remove civil
liberties checks on substantially similar information sharing allowed under
previous law. They do not enhance
national security in that the powers were already in place before the PATRIOT
Act, and fishing for foreign intelligence information in criminal
investigations may even detract from national security by tying up valuable
intelligence community resources. Moreover,
they eliminate previous judicial and internal checks on information
sharing. §203(b) leaves open the
possibility that some sharing will never be reviewed by a judge to ensure that
it is foreign intelligence information.
§218 allows law enforcement officers to circumvent the Fourth Amendment
by merely certifying that the investigation could possibly produce foreign
intelligence information, without ever having to present facts or circumstances
justifying this belief.
As for §206, having the flexibility
to monitor FSIA-worthy targets, who are attempting to avoid surveillance,
wherever they may be found may very well enhance national security. However, it leaves open a great possibility
that the communications of innocent users sharing the same IP address(es) as
the target could have their communications intercepted and examined by
intelligence or law enforcement officials without any judicial review or cause.
Considering the substantive defects of these representative
provisions of the PATRIOT Act along with the immense time and political
pressures facing Congress during its passage, I am of the mind that Congress
should allow Title II to expire at the end of 2005. While provisions such as §§203(b) and 218 can
simply be removed since they are superfluous and create more risk than reward,
provisions such as §206 can be replaced with legislation that strikes the
balance recommended by the Commission and strongly advocated by members of
Congress in 2001. If the amendments
offered by the SAFE Act and its strong support in both the House and Senate are
an indication of whether Congress will follow this course or not, I would say
that Title II is on the way out and more responsible legislation to ensure our
national security is soon to come.
[1]
Introduced by Senator Kyl (R-AZ) on
[2] § 203(b) also amended §2510(19) of the Wiretap Act to
include the definition of “foreign intelligence information” found in 50 U.S.C.
§1801 of the Foreign Intelligence Surveillance Act.
§1801(e)"Foreign
intelligence information" means--
(1)
information that relates to, and if concerning a United States person is
necessary to, the ability of the United States to protect against--
(A) actual or potential attack or other grave hostile
acts of a foreign power or an agent of a foreign power;
(B) sabotage or
international terrorism by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an
intelligence service or network of a foreign power or by an agent of a foreign
power; or
(2)
information with respect to a foreign power or foreign territory that relates to,
and if concerning a
(A) the national
defense or the security of the
(B) the conduct of the foreign affairs of the
[3] 50 U.S.C. §1801(h) "Minimization
procedures", with respect to electronic surveillance, means--
(1) specific procedures, which shall be adopted by the
Attorney General, that are reasonably designed in light of the purpose and
technique of the particular surveillance, to minimize the acquisition and
retention, and prohibit the dissemination, of nonpublicly available information
concerning unconsenting United States persons consistent with the need of the
United States to obtain, produce, and disseminate foreign intelligence
information;
(2) procedures that require that nonpublicly available
information, which is not foreign intelligence information, as defined in
subsection (e)(1) of this section, shall not be disseminated in a manner that
identifies any United States person, without such person's consent, unless such
person's identity is necessary to understand foreign intelligence information
or assess its importance;
(3) notwithstanding paragraphs (1) and (2), procedures
that allow for the retention and dissemination of information that is evidence
of a crime which has been, is being, or is about to be committed and that is to
be retained or disseminated for law enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with
respect to any electronic surveillance approved pursuant to section 1802(a) of this title, procedures that require that no
contents of any communication to which a United States person is a party shall
be disclosed, disseminated, or used for any purpose or retained for longer than
72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney
General determines that the information indicates a threat of death or serious
bodily harm to any person.
(i) "United States person" means a citizen
of the United States, an alien lawfully admitted for permanent residence (as
defined in section 1101(a)(20) of Title 8), an unincorporated association
a substantial number of members of which are citizens of the United States or
aliens lawfully admitted for permanent residence, or a corporation which is
incorporated in the United States, but does not include a corporation or an
association which is a foreign power, as defined in subsection (a)(1), (2), or
(3) of this section.
[4] 50 U.S.C. §1801:
As used in this subchapter:
(a) "Foreign power" means--
(1)
a foreign government or any component thereof, whether or not recognized by the
(2)
a faction of a foreign nation or nations, not substantially composed of
(3)
an entity that is openly acknowledged by a foreign government or governments to
be directed and controlled by such foreign government or governments;
(4)
a group engaged in international terrorism or activities in preparation
therefor;
(5)
a foreign-based political organization, not substantially composed of
(6)
an entity that is directed and controlled by a foreign government or
governments.
(b) "Agent of a foreign power"
means--
(1)
any person other than a
(A)
acts in the United States as an officer or employee of a foreign power, or as a
member of a foreign power as defined in subsection (a)(4) of this section;
(B)
acts for or on behalf of a foreign power which engages in clandestine
intelligence activities in the United States contrary to the interests of the
United States, when the circumstances of such person's presence in the United
States indicate that such person may engage in such activities in the United
States, or when such person knowingly aids or abets any person in the conduct
of such activities or knowingly conspires with any person to engage in such
activities; or
(2)
any person who--
(A)
knowingly engages in clandestine intelligence gathering activities for or on
behalf of a foreign power, which activities involve or may involve a violation
of the criminal statutes of the
(B)
pursuant to the direction of an intelligence service or network of a foreign
power, knowingly engages in any other clandestine intelligence activities for
or on behalf of such foreign power, which activities involve or are about to
involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international
terrorism, or activities that are in preparation therefor, for or on behalf of
a foreign power;
(D) knowingly enters the United States under a false
or fraudulent identity for or on behalf of a foreign power or, while in the
United States, knowingly assumes a false or fraudulent identity for or on
behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct
of activities described in subparagraph (A), (B), or (C) or knowingly conspires
with any person to engage in activities described in subparagraph (A), (B), or
(C).