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 December 31, 2005 and force congressional review, was the key to their final support.  See 147 Cong.Rec. H6726-04, 147 Cong. Rec. S10547-01, 147 Cong. Rec. S10990-02 (hereinafter “PATRIOT Act Congressional Record”).

            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 New Jersey, Evesham Recreation Center, Marlton, New Jersey, October 18, 2004 (http://www.whitehouse.gov/news/releases/2004/10/20041018-11.html).  He has also dismissed civil liberties concerns about the Act by commenting that, “The danger to America is not the Patriot Act, or the good people who use it; the danger to America is the terrorists.”  Id.  Similarly, Attorney General John Ashcroft denounced such criticism in testimony to the Senate Judiciary Committee, saying, “To those who scare peace-loving people with phantoms of lost liberty; my message is this: Your tactics only aid terrorists – for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends.”  149 Cong.Rec. S12377-01, S12386. 

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.”  Id.  Thus, the PATRIOT Act made sweeping changes to existing electronic surveillance laws to add Internet surveillance to the tools intelligence and law enforcement officials can use to identify, locate and monitor terrorism suspects, but raised concerns, even among supporters, that these new tools could infringe on Internet users’ rights without adequate judicial oversight.

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 September 11, 2001, it was widely presumed that the US intelligence community failed to stop the attacks because of insufficient information sharing capabilities among the various divisions of the Justice Department.  Just nine days after the attacks, Attorney General Ashcroft presented a bill to Congress that would become the core of the PATRIOT Act.  Congress was aware that most of the bill’s proposals were not new, yet seemed to not question whether these proposals were actually necessary to address the emergency situation.  Senator Hatch admitted that, “No one can say whether these tools could have prevented the attacks of September 11.  But, as the Attorney General has said, it is certain that without these tools, we did not stop the vicious acts of last month. . .”  147 Cong. Rec. S10547-01, S10560.  While this kind of reasoning is not entirely convincing, the PATRIOT Act Congressional Record reveals that Congress was in a state of mind in which it was willing to do whatever it took to protect the American people and had faith that the Administration would provide it with what was necessary and proper to do so. 

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, September 28, 2000.  Senator Leahy went on to note that:

“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.”  Id.


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.”  Id.  Although Leahy said these reasons are “unfounded,” pointing out that courts can easily “recognize the need to disclose information relevant to terrorism investigations” and that courts “can be trusted to keeps secrets and recognize the needs of the President,” he was unable to convince the Administration to agree to subject such information sharing to judicial review.  Id. 

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.  Id.  This was a victory since “foreign intelligence information” is exhaustively defined in § 1801(e) of the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. §§ 1801 et seq., which §203(b) included in the Wiretap’s definitions, but “national security” is not defined in either the Wiretap Act or the FISA.  Thus, although Leahy was unable to negotiate judicial review over §203(b) information sharing and dared not force the issue for fear of unraveling the entire bill, he was able to place some kind of established limitation on the information that law enforcement agents know they can share with intelligence officials.

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 October 11, 2001, was replaced overnight by the bill the House was to pass on October 12, 2001.  The new bill was substantially based on S. 1510 with some of H.R. 2975’s provisions tacked on, including the sunset provision.  See 147 Cong.Rec. H6726-04.  Several House Judiciary members, such as Representative Waters (D-CA), cried foul and accused the Administration and Ashcroft of “firing the first partisan shots” since the attacks and “using this unfortunate situation to extract extraordinary powers to be used beyond dealing with terrorism, laws that [Ashcroft] will place into the regular criminal justice system.”  147 Cong.Rec. H6726-04, H6763.  Many claimed that they had no chance to read the new legislation and that the switch was an insult to the Committee and the entire committee process.  However, they still voiced support for the bill out of necessity to protect the American people and placed their faith in the sunset clause to revisit the issue when there was less political and time pressure.  See 147 Cong.Rec. H6726-04. 

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.  Id.  While no members denied that foreign intelligence information could possibly come from an ordinary criminal investigation, almost every other Representative and Senator who spoke on this issue argued that criminal investigations should not be allowed without a showing of standard probable cause.  Others were also disturbed by the fact that this provision seemed only tangentially related to combating terrorism, which was the primary reason Congress was willing to push through this legislation with so little committee review and no amendments. 

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 Foreign Intelligence Surveillance Court, 218 F.Supp.2d 611, 613 (FISC 2002), rev’d, 310 F.3d 717 (FISCR 2002).  Such information is only subject to “minimization procedures” because §1801(h)(3) specifically requires that procedures “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.” 

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.  Id. However, the 1995 procedures strictly prohibited the CRM from instructing the FBI,

“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.”  Id. (emphasis added).


            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 . . .”  Id. (emphasis in original).  Accordingly, the FISC modified the 2002 Procedures to make clear that the OIPR must be allowed to review information sharing, and that the FBI and CRM must,

“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.  Id. at 726, citing United States v. Truong Dinh Hung, 629 F.2d 908, 915 (4th Cir. 1980).  The Court seemed to believe that this fact, combined with the new language of the FISA passed with the overwhelming support of Congress, justified suspending the Fourth Amendment for criminal investigations with a secondary foreign intelligence purpose. 

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.  Id.  Thus, the FISA was implemented to make sure that enhanced surveillance authority was available for national security purposes, but also to ensure that surveillance of common people was limited to criminal investigations based on a Fourth Amendment showing of probable cause. 

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.



            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 May 21, 2004 with nine co-sponsors and referred to the Senate Judiciary Committee that same day, but no further action since.

[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                United States person is necessary to--

(A) the national defense or the security of the United States; or

(B) the conduct of the foreign affairs of the United States.

[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 United States;

(2) a faction of a foreign nation or nations, not substantially composed of United States persons;

(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 United States persons; or

(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 United States person, who--

(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 United States;

(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).