Patriot 101.

Patriot 101.

Patriot 101.

The law, lawyers, and the court.
Sept. 10 2003 8:01 PM

A Guide to the Patriot Act, Part 3

Should you be scared of the Patriot Act?

Illustration by Mark Alan Stamaty

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.

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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.

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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"

Section 216 clarifies that pen register/trap-and-trace authority applies to Internet surveillance. Until now, it was at the whim of judges and the Justice Department whether the rules for phone taps applied to the Internet as well.

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What it does: Patriot changes the language that was drafted contemplating only telephonic surveillance to include Internet monitoring, specifically information about: "dialing, routing, and signaling." It also broadens such monitoring to any information "relevant to an ongoing criminal investigation."

The law before and how it changed: Before the Patriot Act, Internet surveillance by the feds was essentially unregulated. The availability of an Internet tap turned on whether a judge would apply phone tap rules to the Internet. While the act broadens the use of tapping devices from telephone numbers to Internet and e-mail origins, it actually sets up higher standards for the government to meet. For instance, wiretaps may not be used to intercept "the content" of Internet communications (although the act does not specify what "content" means, which worries civil libertarians).The provision requires that the feds report back on how the wiretap was used. However, warrants can now be sought for any suspected crimes, not merely for terrorism-related acts. Also, judges have no authority to reject these applications.

It was widely reported that the Patriot Act expressly authorized the use of "Carnivore"—the federal Internet surveillance tool. However, Patriot never mentions Carnivore, and the only section that implicates Carnivore requires that the government file a detailed report whenever it installs its own surveillance device on an ISP.

How it's been implemented: The DOJ says it has used the Patriot-amended pen/trap provisions to track the communications of a host of ne'er-do-wells. [The greatest-hits list it sent the House Judiciary Committee in May includes: "(1) terrorist conspirators, (2) at least one major drug distributor, (3) identity thieves who obtained victims' bank account information and stole the money, (4) a four-time murderer, and (5) a fugitive who fled on the eve of trial using a fake passport." They also say the new authority helped them investigate the murder of Daniel Pearl.]

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In May 2002 the attorney general sent field offices a memo warning agents against "overcollection," the inadvertent collection of content when using a pen/trap device. The memo mandated that agents must use "reasonably available technology" to avoid capturing content. If content is accidentally captured "no affirmative investigative use may be made of that content"—"except in a rare case in order to prevent an immediate danger of death, serious physical injury, or harm to the national security." Asked at a May congressional hearing how the DOJ defines "content" when it comes to electronic communications, Assistant Attorney General Viet Dinh reported, "We consider non-content to be the 'to' and the 'from.' The subject line is content." Nice that they're paying attention, but it does appear that the DOJ acts as the only check on itself, here.

As for Carnivore, the DOJ reported in August 2002 that federal investigators had filed only two notices detailing the installation of surveillance devices on an ISP. Only one of the two was related to a terror investigation. Dinh noted in May that agents retain information about such installations—"including information relating to how it was used, what information was gathered by the device, and ultimately whether or not it was successful in gathering such information"—and make it available to the court that issued the warrant within 30 days.

Would you know if Section 216 had been used on you? Not unless you were someday prosecuted based on information obtained pursuant to this statute.

Sunsets in 2005: No.

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Enough to get you through a cocktail party: Section 216 is one of the provisions that may actually protect privacy. By codifying wiretapping law as it's applied to the Internet, Patriot removes a lot of the ambiguity from the prior rules. But as the laundry list above suggests, Patriot authorized this surveillance for a lot more than the war on terror. Which seems a little opportunistic, no?

Section 206, aka "Here, Rover"

Section 206 authorizes roving wiretaps: taps specific to no single phone or computer but to every phone or computer the target may use. It doesn't get as much attention as it should. If the government decides to tap a computer at the UCLA library, every communication by every user can theoretically be intercepted.

What it does: Expands FISA to permit surveillance of any communications made to or by an intelligence target without specifying the particular phone line or computer to be monitored.

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The law before and how it changed: Tapswere formerly applicable only to specific phones. Under Patriot,theFISA court can authorize taps or intercepts on any phones or computers that the target may use. The foreign intelligence authorities can require anyone to help them wiretap. Previously, they could only serve such orders on common carriers, landlords, or other specified persons. Along with Section 220, which allows a judge to authorize national wiretaps rather than ones limited to her jurisdiction, this severely undercuts a judge's ability to monitor whether taps are being used appropriately and erodes the "particularity" requirement of the Fourth Amendment.

How it's been implemented: When asked in May to detail provisions of the Patriot Act that had helped federal authorities dismantle terrorist networks, the DOJ made no specific mention of section 206. (They also skipped 214.) That's slightly odd, since the DOJ has often used such open-ended questions to grandstand about renewing sunsetted provisions. The DOJ did tell the House Judiciary Committee in July 2002 that the number of roving wiretaps issued is classified, noting that we can "assure the committee that the Department's request for use of such authority … has been limited to those cases where the surveillance ordered by the Court would otherwise be, or would otherwise likely be, impossible." So, at least there's that.

Would you know if Section 206 had been used on you? Not unless the information was someday used to prosecute you.

Sunsets in 2005: Yes.

Enough to get you through a cocktail party: The vast expansion of warrant power is worrisome. The check on the use of wiretapping authority for government fishing expeditions was judicial oversight. Such oversight is impossible when taps are issued nationwide and to a range of phones and computers.