Should you be scared of the Patriot Act?

This is the third in a four-part series about what's really in the USA Patriot Act. Click here to read Part 1 and here to read Part 2.

Section 214, aka "Can I borrow a pen register?"

What it does: "Pen registers" ascertain phone numbers dialed from a suspect's telephone; "Trap and trace" devices monitor the source of all incoming calls. Neither reveals the content of communication. Patriot removes the warrant requirement for these taps so long as the government can certify that the information likely to be obtained is "relevant" to an ongoing investigation against international terrorism.

The law before and how it changed: Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, a traditional phone wiretap could be obtained on a showing of probable cause that one of an enumerated list of crimes had been committed. Warrants were valid for only 30 days, and the government needed to report back to the court. Under the 1978 Foreign Intelligence Surveillance Act the requirements for a wiretap order were more minimal: The FBI didn't need probable cause or even reasonable suspicion to install a tap, but only had to certify to a judge that information resulting from such a warrant would be "relevant" to an ongoing criminal investigation. Section 214 doesn't change this standard but broadens the reach—making the FISA pen register/trap-and-trace power available in both criminal and foreign intelligence investigations, so long as the government merely certifies that the information obtained would be "relevant to an ongoing investigation." The probable-cause requirement in criminal cases is gone. Courts may not inquire into the truthfulness of the allegations before authorizing a tap.

How it's been implemented: In July 2002 the attorney general's office told the House Committee on the Judiciary that the number of times the tools in Section 214 had been used against Americans was classified and would be provided only to intelligence committees. In August 2002 the DOJ also noted that 214's "streamlining" of the pen/trap request process "has made these less intrusive tools of FISA more reasonable tools of investigation and more available as alternatives to other tools of the Act." Not clear how that's supposed to be reassuring.

Would you know if Section 214 had been used on you? Only if the information obtained was someday used against you in a proceeding; otherwise it's kept secret.

Sunsets in 2005: Yes.

Prognosis: In July 2003 Sens. Lisa Murkowski and Ron Wyden introduced S 1552, the "Protecting the Rights of Individuals Act," which would toughen judicial review for some telephone and Internet monitoring. The bill requires the government to be more specific about targets of wiretaps obtained under the law.

Enough to get you through a cocktail party: While Patriot certainly lowers the standard for obtaining wiretaps to an assertion of mere "relevance" in an ongoing investigation, those standards were awfully low to begin with. It's hard to see how Patriot made life much worse than FISA.

Section 216, aka "Your friendly neighborhood Carnivore"