Title II of the Patriot Act

The USA PATRIOT Act was passed by the United States Congress in 2001 as a response to the September 11, 2001 attacks. It has ten titles, each containing numerous sections. Title II: Enhanced Surveillance Procedures gave increased powers of surveillance to various government agencies and bodies. This title has 25 sections, with one of the sections (section 224) containing a sunset clause which sets an expiration date, 31 December 2005, for most of the title's provisions. On 22 December 2005, the sunset clause expiration date was extended to 3 February 2006.

Title II contains many of the most contentious provisions of the act. Supporters of the Patriot Act claim that these provisions are necessary in fighting the War on Terrorism, while its detractors argue that the sections of Title II infringe upon individual and civil rights.

The sections of Title II primarily amend the Foreign Intelligence Surveillance Act of 1978 and its provisions in 18 U.S.C., dealing with "Crimes and Criminal Procedure." In general, the Title expands federal agencies' powers in intercepting, sharing, and using private telecommunications, especially electronic communications. It also sets out procedures and limitations for individuals who feel their rights have been violated to seek redress, including against the United States government. However, it also includes a section that deals with trade sanctions against countries whose government supports terrorism, which is not really directly related to surveillance issues.

Summary

Title II covers all aspects of the surveillance of suspected terrorists, those suspected of engaging in computer fraud or abuse, and agents of a foreign power who are engaged in clandestine activities (in other words, spying). In particular, the title allows government agencies to gather "foreign intelligence information", which is defined in section 203 of the title. Interestingly, while the sole purpose of surveillance relating to national security or defense used to be to obtain foreign intelligence information, this is no longer the case. Section 218 redefined the definition in FISA to be "that a significant purpose of the surveillance is to obtain foreign intelligence information" (change in italics). This meaning is never clarified.

Though not related to surveillance, the title also covers trade sanctions against the Taliban, which were determined by the Secretary of State to have repeatedly provided support for acts of international terrorism and the export of agricultural commodities, medicine, or medical devices is now pursuant to one-year licenses issued and reviewed by the United States Government. It also excluded export of agricultural commodities, medicine, or medical devices to the Government of Syria and to the Government of North Korea.

Scope of allowed surveillance

The title allows surveillance to intercept communications via pen register or trap and trace devices. It does not allow these surveillance measures to be used in violation of the first amendment rights of U.S. citizens. To assist in an investigation undertaken to protect against international terrorism or clandestine intelligence activities, the title allows for the seizure of communications records (section 215) and any records of session times, durations of electronic communication as well as any identifying numbers or addresses of the equipment that was being used (section 210). Such orders may be granted ex parte, and once they are granted — in order to not jeopardize the investigation — the order may not disclose the reasons behind why the order was granted. Section 209 made it easier for authorities to gain access to voicemail: they no longer must apply for a wiretap order, and instead just apply for a normal search warrant.

All orders granted under section 215 must be disclosed to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate. Every six months, the Attorney General must also provide a report to the Committees on the Judiciary of the House of Representatives and the Senate which details the total number of applications made for orders approving requests for the production of tangible things and the total number of such orders either granted, modified, or denied.

Under section 211, the United States Code was amended to allow the government to have access to the records of cable customers, with the notable exclusion of access to records revealing cable subscriber selection of video programming from a cable operator.

Disclosure

Section 212 stopped a communications provider from disclosing the contents of communications with another party. However, if the provider "reasonably" (not defined) believes that an emergency involving immediate danger of death or serious physical injury to any person is imminent, then the communications provider can now disclose this information without fear of legal liability. The provider may also disclose communications at the request of a government agency, if the customer allows it to be disclosed, or in cases where they must do so to protect their rights or property.

Surveillance orders

In order for surveillance to be carried out, the United States Attorney General or his subordinates (so designated under section 201) may authorise a Federal judge to grant a surveillance order to the FBI or other Federal agency. Each of the orders granted must be reviewed by one of eleven District Court judges, of which at any one time three must live within 20 miles of the District of Columbia (see section 208).

Title II amended the US Code to allow a magistrate judge to issue a warrant outside of their district for any orders that relate to terrorism (section 219). Section 220 of the title also gave a Federal court judge the power to issue nationwide service of search warrants for electronic surveillance.

Under FISA, any agency may require a common carrier, landlord, custodian, or other person provide them with all information, facilities, or technical assistance necessary to accomplish ongoing electronic surveillance. They must also protect the secrecy of and cause as little disruption to the ongoing surveillance effort as possible. This was further tighted in section 206. Section 222 further limited the sort of assistance an agency may require, and provided for compensation of any person who rendered surveillance assistance to the government agency. Section 225 allows for legal immunity to any provider of a wire or electronic communication service, landlord, custodian, or other person that provides any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance

Liability due to unauthorised surveillance

Section 223 allows any party who has had their rights violated due to the illegal interception of communications to take civil action against those who undertook the illegal surveillance.

Commentary

Various organisations have commented on Title II. Some of the most significant commentary has come from the Electronic Privacy Information Center (EPIC), the Electronic Frontier Foundation (EFF), the American Bar Association (ABA), the American Civil Liberties Union (ACLU) and from the United States government.

American Bar Association

The ABA passed resolutions that asked the U.S. government "to conduct a thorough review of the implementation of the powers granted to the Executive Branch under the [USA PATRIOT] Act before considering legislation that would extend or further expand such powers ...." and "to conduct regular and timely oversight including public hearings ... to ensure that government investigations undertaken pursuant to the Foreign Intelligence Surveillance Act ... do not violate the First, Fourth, and Fifth Amendments of the Constitution ...." They also set up a website, Patriot Debates to discuss issues in relation to the USA PATRIOT Act. Several sections of Title II were discussed in great depth in essays published on the website.

Electronic Privacy Information Center

EPIC has criticised numerous sections of the title. The main thrust of their argument is that the Act does not provide a system of checks and balances to safeguard civil liberties in the face of significantly increase powers of surveillance and investigative powers for law enforcement agencies in the United States. They criticise:

Section 203, which gives authorities the ability to share information regarding criminal activity. The specifically believe that the section will not limit the increased sharing of information to terrorist activities, mainly because "foreign intelligence information" is too vague. ^[1]

Section 206, a section that allows for "roving surveillance" of a target whose actions may have the effect of thwarting the identification of a particular person, is criticised for being too broad in scope and that the privacy of citizens is eroded. They are in particular concerned about those who use the Internet through public facilities such as libraries, university computer labs and cybercafe, as the FBI may monitor any facility that the target may be using, and do not have to specify which facility they are monitoring. They believe that this violates the Fourth Amendment, which specifies that search warrants must specify the place being searched.

Section 213 (the "sneak and peak" section), which allows a court to delay the notification of a search warrant. EPIC claims that delayed notifications were only done in a limited number of cases prior to the Patriot Act and that "[applying] this extraordinary authority to all searches constitutes a radical departure from Fourth Amendment standards and could result in routine surreptitious entries by law enforcement agents." ^[2]

Section 214, as they believe that the section takes away the "statutory requirement that the government prove the surveillance target is "an agent of a 'foreign power'" and as such "the amendment significantly eviscerates the constitutional rationale for the relatively lax requirements that apply to foreign intelligence surveillance... The removal of the 'foreign power' predicate for pen register/trap and trace surveillance upsets that delicate balance.". Section 214, however, does not in fact states this: instead, in section 402 of FISA (50 U.S.C. § 1842) it replaces the text "for any investigation to gather foreign intelligence information or information concerning international terrorism" with "for any investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution"

Section 216, which deals with the authority to issue pen registers and trace devices and contend that "the statutory definitions are vague with respect to the types of information that can be captured and are subject to broad interpretations". They are not impressed with the section's specific exclusion of the contents of such communications, because this is defined in 18 U.S.C. § 2510(8) as "[including] any information concerning the substance, purport, or meaning of that communication". They say that it "does not adequately take into account the unique nature of information captured electronically, which contains data far more revealing than phone numbers, such as URLs generated while using the Web (which often contain a great deal of information that cannot in any way be analogized to a telephone number)". They also say that "availability of nationwide orders for the interception and collection of electronic evidence would remove an important legal safeguard by making it more difficult for a distant service provider to appear before the issuing court and object to legal or procedural defects". ^[3] Section 220, which deals with nationwide service of search warrants for electronic evidence, is similarly criticised.

Section 217, which deals with the interception of computer trespasser communications, has "little, if anything, to do with legitimate investigations of terrorism".

Section 218, where it is now the "significant purpose" of national security and defense based surveillance to gather foreign intelligence information, they criticised the wording of "Significant" as undefined and vague, and believe that this "could lead to inconsistent determinations and potential overuse of the FISA standards."

EPIC also singled out Section 205, which allows the director of the FBI to employ translators, and section 208, which increases the number of Federal judges that can review surveillance orders from seven to eleven as "commendable in their efforts to aid the government in preventing terrorist acts while maintaining a system checking intrusion onto citizens' civil liberties".

American Civil Liberties Union

The ACLU, an advocate of both free speech and also personal privacy has objected strongly to the Patriot Act, claiming it is flawed and violates a number of personal freedoms. "There are significant flaws in the Patriot Act, flaws that threaten your fundamental freedoms by giving the government the power to access to your medical records, tax records, information about the books you buy or borrow without probable cause, and the power to break into your home and conduct secret searches without telling you for weeks, months, or indefinitely."

[4]

Electronic Frontier Foundation

The EFF has been scathing in it's criticism of the Patriot Act. They have stated that "while containing some sections that seem appropriate -- providing for victims of the September 11 attacks, increasing translation facilities and increasing forensic cybercrime capabilities -- it seems clear that the vast majority of the sections included were not carefully studied by Congress, nor was sufficient time taken to debate it or to hear testimony from experts outside of law enforcement in the fields where it makes major changes" and that "[many provisions] are aimed at nonviolent, domestic crime... [and] although many of the provisions facially appear aimed at terrorism, the Government made no showing that the reasons they failed to detect the planning of the recent attacks or any other terrorist attacks were the civil liberties compromised with the passage of PATRIOT." ^[5] They have also criticised the addition of computer crimes to the list of acts deemed to be terrorist related. ^[6]

The EFF have criticised:

Section 201, in combination with section 805 which deals with the material support of terrorism. The EFF believes that U.S. citizens should be allowed to support an organisation deemed as terrorist, if only to support them in non-terrorist activities. One example they cite of potential problems with section 805 is that citizens would not have been able to support the African National Congress (ANC) during apartheid, as they believe they would be classed as a terrorist organisation. Further examples are of a humanitarian social worker being unable to train Hamas members how to care for civilian children orphaned in the conflict between Israelis and Palestinians or a lawyer could not teach IRA members about international law, or peace workers offering training in effective peace negotiations or how to petition the United Nations regarding human rights abuses. The EFF, however, does not oppose section 201 on its own and believes that the section should be repealed is section 805. ^[7]
Section 202 and section 217, which both deal with the approval of intercept orders for the investigation of computer crimes. The EFF believes that this section should sunset because the Congress passed the section without having to "cite even a single instance in which a computer-crime investigation – much less a terrorism investigation - had been hindered due to lack of surveillance authority." ^[8]
Section 204, which ammended FISA to allow the acquisition of foreign intelligence information from non-U.S. source via a variety of measures, has been criticised as removing safeguards against unchecked surveillance. The EFF has stated that "Congress forgot to clarify that the US could also ignore pen-trap laws when the information is gathered outside the country". They hold that it shows that "204 really clarified was just how bad the rest of the law was even before the USA PATRIOT Act passed, and how government surveillance of international communications is dangerously unregulated", and cite ECHELON as an example of a system out of control. Section 204 modified 18 U.S.C. § 2511(2)(f) to include chapter 206 of the US Code (which deals with the regulation of pen registers and trap and trace devices) and includes electronic devices in the list of devices that agencies can intercept communications. The section in contention states that:
Nothing contained in this chapter or chapter 121 [regulations that determines when and where stored communications and transactions can be accessed] or 206 of this title, or section 705 of the Communications Act of 1934 [disallows anyone who receives, assists with receiving, transmits, or assists in transmitting any interstate or foreign communication by wire or radio from divulging or publishing the contents of such communications, "except through authorized channels of transmission or reception"] shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

The EFF believe that the Patriot Act should be repealed to fix what they say is abuses in the system. They believe that "strong public opposition to Section 204's expansion of international surveillance authority could send a message to Congress that the rest of the law needs fixing." ^[9]

Section 206, which allows for the roving surveillance of targets, and allows a government agency to require full assistance to perform such surveillance. The EFF objects to the law because they believe it "gives the FBI a 'blank check' to violate the communications privacy of countless innocent Americans". They believe that because there is a lower legal standard for FISA wiretaps it will lead to abuses of the fourth ammendment rights of U.S. citizens. The EFF states that the "the FBI can wiretap every single phone line, mobile communications device or Internet connection that a suspect might be using, without ever having to identify the suspect by name... for up to a year". ^[10] However, nothing in section 206 states these things, instead section 205 ammended 50 U.S.C. § 1805(c)(2)(B) by inserting 'or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons,' after 'specified person'. It now reads:
[An order approving an electronic surveillance under this section shall direct] that, upon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person, or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons, furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance

United States Government

Sections

The following details the 25 sections of Title II:

Sections 201 & 202: Intercepting communications

Two sections dealt with the interception of communications by the United States government.

Section 201 is titled Authority to intercept wire, oral, and electronic communications relating to terrorism. This section amended 18 U.S.C. § 2516 (Authorization for interception of wire, oral, or electronic communications) of the United States Code. This section allows (under certain specific conditions) the United States Attorney General (or some of his subordinates) to authorize a Federal judge to make an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation (FBI), or another relevant U.S. Federal agency.

The Attorney General's subordinates who can use Section 201 are: the Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, any acting Assistant Attorney General, any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division who is specially designated by the Attorney General.

The amendment added a further condition which allowed an interception order to be carried out. The interception order may now be made if a criminal violation is made with respect to terrorism (defined by 18 U.S.C. § 2332):

the use of weapons of mass destruction (defined by 18 U.S.C. § 2332a), or
providing financial aid to facilitate acts of terrorism (defined by 18 U.S.C. § 2332d), or
providing material support to terrorists (defined by 18 U.S.C. § 2339A), or
Providing material support or resources to designated foreign terrorist organizations (defined by 18 U.S.C. § 2339B).

Note: the legislation states that title 18, section 2516(1), paragraph (p) of the United States Code was redesignated (moved) to become paragraph (q). This paragraph had been previously resignated by two other pieces of legislation: the Antiterrorism and Effective Death Penalty Act of 1996 ^[11] and by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (see section 201(3)).

Section 202 is titled Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses, and amended the United States Code to include computer fraud and abuse in the list of reasons why an interception order may be granted. ^[12]

Section 203: Authority to share criminal investigative information

Section 203 (Authority to share criminal investigation information) modified the Federal Rules of Criminal Procedure with respect to disclosure of information before the grand jury. It further prohibited the disclosure of matters in deliberation by the grand jury if:

a court orders it (before or during a judicial proceeding),
a court finds that there are grounds for a motion to dismiss an indictment because of matters before the Grand Jury,
if the matters in deliberation are made by an attorney for the government to another Federal grand jury,
an attorney for the government requests that matters before the grand jury may reveal a violation of State criminal law,
the matters involve foreign intelligence or counterintelligence or foreign intelligence information. Foreign intelligence and counterintelligence was defined in section 3 of the National Security Act of 1947 ^[13], and "foreign intelligence information" was further defined in the amendment as information about:
1. an actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
2. sabotage or international terrorism by a foreign power or an agent of a foreign power; or
3. clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of foreign power; or
4. information about a foreign power or foreign territory that relates to the national defense or the security of the United States or the conduct of the foreign affairs of the United States.'.

The legislation also gave the court the power to order a specific time with which information may be disclosed, and specified when a government agency may use information disclosed about a foreign power. The rules of criminal procedure now state that "Within a reasonable time after such disclosure, an attorney for the government shall file under seal a notice with the court stating the fact that such information was disclosed and the departments, agencies, or entities to which the disclosure was made."

The section of the United States Code that details who is allowed to learn the results of a communications interception was amended to allow any investigative or law enforcement officer, or attorney for the Government to divulge foreign intelligence, counterintelligence or foreign intelligence information to a variety of Federal officals. Specifically, any Federal law enforcement, intelligence, protective, immigration, national defense, or national security official. However, the information received must only be used as necessary in the conduct of the official's official duties. ^[14]

Section 204: Limitations on communication interceptions

Section 204 (Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communication) removed restrictions from the acquisition of foreign intelligence information from international or foreign communications. It was also clarified that the Foreign Intelligence Surveillance Act of 1978 should not only be the sole means of electronic surveillance for just oral and wire intercepts, but also should include electronic communication. ^[15]

Section 205: Employment of translators by the FBI

Under section 205 (Employment of translators by the Federal Bureau of Investigation), the Director of the Federal Bureau of Investigation is now allowed to employ translators to support counterterrorism investigations and operations without regard to applicable Federal personnel requirements and limitations. However, he must report to the Committees on the Judiciary of the House of Representatives and the Senate the number of translators employed and any legal reasons why he cannot employ translators from Federal, State or local agencies.

Section 206: Roving surveillance authority

The Foreign Intelligence Surveillance Act of 1978 ^[16] allows an applicant access to all information, facilities, or technical assistance necessary to perform electronic surveillance on a particular target. The assistance given must protect the secrecy of and cause as little disruption to the ongoing surveillance effort as possible. The direction could be made at the request of the applicant of the surveillance order, by a common carrier, landlord, custodian or other specified person. Section 206 (Roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978) amended this to add:

or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a particular person.

Section 207: Duration of FISA surveillance on agents of a foreign power

Previously FISA only defined the duration of a surveillance order against a foreign power (defined in Section 105(e) (1)) . This was amended by section 207 (Duration of FISA surveillance of non-United States persons who are agents of a foreign power) to allow surveillance of agents of a foreign power (as defined in section 101(b) (1)(A)) for a maximum of 90 days. Section 304(d)(1) was also amended to extend orders for physical searches from 45 days to 90 days, and orders for physical searches against agents of a foreign power are allowed for a maximum of 120 days. The act also clarified that extensions for surveillance could be granted for a maximum of a year against agents of a foreign power.

Section 208: Designation of judges

Section 103(A) of FISA was amended by Section 208 (Designation of judges) of the Patriot Act to increase the number of district court judges who must now review surveillance orders from 7 to 11. Of these, three of the judges must live within 20 miles of the District of Columbia.

Section 209: Seizure of voice-mail messages pursuant to warrants

Section 209 (Seizure of voice-mail messages pursuant to warrants) removed the text "any electronic storage of such communication" from title 18, section 2510 of the United States Code. Before this was struck from the Code, the U.S. government needed to apply for a title III wiretap order before they could open voicemails. Section 2703, which specifies when a "provider of electronic communication services" must disclose the contents of stored communications, was also amended to allow such a provider to be compelled to disclose the contents via a search warrant, and not a wiretap order. According to Vermont senator Patrick Leahy, this was done to "harmonizing the rules applicable to stored voice and non-voice (e.g., e-mail) communications". ^[17]

Section 210 & 211: Scope of subpoenas for records of electronic communications

The US Code specifies when the U.S. government may require a provider of an electronic communication service to hand over communication records. ^[18] It specifies what that provider must disclose to the government ^[19], and was amended by section 210 (Scope of subpoenas for records of electronic communications) to include records of session times and durations of electronic communication as well as any identifying numbers or addresses of the equipment that was being used, even if this may only be temporary. For instance, this would include temporarily assigned IP addresses, including those established by DHCP.

Section 211 (Clarification of scope) further clarified the scope of such orders. 47 U.S.C. § 551 (Section 631 of the Communications Act of 1934) deals with the privacy granted to users of cable services. The code was amended to allow the government to have access to the records of cable customers, with the notable exclusion of records revealing cable subscriber selection of video programming from a cable operator.

Section 212: Emergency disclosure of electronic communications

Section 212 (Emergency disclosure of electronic communications to protect life and limb) amended the US Code to stop a communications provider from providing communication records (not necessarily relating to the content itself) about a customer's communications to others ^[20]. However, should the provider reasonably believe that an emergency involving immediate danger of death or serious physical injury to any person then the communications provider can now disclose this information. The act does not make clear what "reasonably" means.

This does not apply if:

a court orders the disclosure of communications at the request of a government agency (18 U.S.C. § 2703)
the customer allows the information to be disclosed
if the service provider believes that they must do so to protect their rights or property

Section 213: Delayed search warrant notification

Section 213 (Authority for delaying notice of the execution of a warrant) amended the US Code to allow the notification of search warrants ^[21] to be delayed. ^[22] The U.S. government may now legally search and seize property that constitutes evidence of a United States criminal offense without immediately telling the owner. The court may only order the delayed notification if they have reason to believe it would have an adverse effect of an investigation — delayed notifications were already defined in 18 U.S.C. § 2705 — or if a search warrant specified that the subject of the warrant must be notified "within a reasonable period of its execution" then it allows the court to extend the period before the notification is given, though the government must show "good cause". If the search warrant prohibited the seizure of property or communications then the search warrant could then be delayed.

Before the Patriot Act was enacted, there were three cases before the United States District Courts: United States v. Freitas, 800 F.2d 1451 (9th Cir. 1986); United States v. Villegas, 899 F.2d 1324 (2d Cir. 1990); and United States v. Simons, 206 F.3d 392 (4th Cir. 2000). Each determined that, under certain circumstances, it was not unconstitutional to delay the notification of search warrants.

This section has been commonly referred to as the "sneak and peek" section.

Section 214: Pen register and trap and trace authority

FISA was amended by section 214 (Pen register and trap and trace authority under FISA) to clarify that pen register and trap and trace surveillance can be authorised to allow government agencies to gather foreign intelligence information. ^[23] Where the law only allowed them to gather surveillance if there was evidence of international terrorism, it now gives the courts the power to grant trap and traces against:

non-U.S. citizens,
those suspected of being involved with international terrorism,
those undertaking clandestine intelligence activities

Any investigation against U.S. citizens must not violate the First Amendment to the United States Constitution.

Section 215: Access to records and other items under FISA

FISA was modified by section 215 (Access to records and other items under the Foreign Intelligence Surveillance Act) to allow the Director of the FBI (or an official designated by the Director, so long as that official's rank is no lower than Assistant Special Agent in Charge) to apply for an order to produce materials that assist in an investigation undertaken to protect against international terrorism or clandestine intelligence activities. The act specifically gives an example to clarify what it means by "tangible things": it includes "books, records, papers, documents, and other items".

It is specified that any such investigation must be conducted in accordance with guidelines laid out in Executive Order 12333 (which pertains to United States intelligence activities). Investigations must also not be performed on U.S. citizens who are carrying out activities protected by the First Amendment to the Constitution of the United States.

Any order that is granted must be given by a District Court Judge or by a United States Magistrate Judge who is publicly designated by the Chief Justice of the United States to allow such an order to be given. Any application must prove that it is being conducted without violating the First Amendment rights of any U.S. citizens. The application can only be used to obtain foreign intelligence information not concerning a U.S. citizen or to protect against international terrorism or clandestine intelligence activities.

This section of the Patriot Act is controversial because the order may be granted ex parte, and once it is granted — in order to not jeopardize the investigation — the order may not disclose the reasons behind why the order was granted.

In order to protect anyone who complies with the order, FISA now prevents any person who complies with the order in "good faith" from being liable for producing any tangible goods required by the court order. The production of tangible items is not deemed to constitute a waiver of any privilege in any other proceeding or context.

As a safeguard, section 502 of FISA compels the Attorney General to inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate of all such orders granted. Every six months, the Attorney General must also provide a report to the Committees on the Judiciary of the House of Representatives and the Senate which details the total number of applications made for orders approving requests for the production of tangible things and the total number of such orders either granted, modified, or denied.

Section 216: Authority to issue pen registers and trap and trace devices

Section 216 (Modification of authorities relating to use of pen registers and trap and trace devices) deals with three specific areas with regards to pen registers and trap and trace devices: general limitations to the use of such devices, how an order allow the use of such devices must be made, and the definition of such devices.

Limitations

18 U.S.C. § 3121 details the exceptions related to the general prohibition on pen register and trap and trace devices. Along with gathering information for dialup communications, it allows for gathering routing and other addressing information. It is specifically limited to this information: the Act does not allow such surveillance to capture the actual information that is contained in the communication being monitored.

Making and carrying out orders

It also details that an order may be applied for ex parte (without the party it is made against present), and allows the agency who applied for the order to compel any relevant person or entity providing wire or electronic communication service to assist with the surveillance. If the party whom the order is made against so requests, the attorney for the Government, law enforcement or investigative officer that is serving the order must provide written or electronic certification that the order applies to the targeted individual.

If a pen register or trap and trace device is used on a packet-switched data network, then the agency doing surveillance must keep a detailed log containing:

any officer or officers who installed the device and any officer or officers who accessed the device to obtain information from the network;
the date and time the device was installed, the date and time the device was uninstalled, and the date, time, and duration of each time the device is accessed to obtain information;
the configuration of the device at the time of its installation and any subsequent modification made to the device; and
any information which has been collected by the device

This information must be generated for the entire time the device is active, and must be provided ex parte and under seal to the court which entered the ex parte order authorizing the installation and use of the device. This must be done within 30 days after termination of the order.

Orders must now include the following information: ^[24]

the identifying number of the device under surveillance
the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied
if a trap and trace device is installed, the geographic limits of the order must be specified

This section amended the nondisclosure requirements of 18 U.S.C. § 3123(d)(2) by expanding to include those whose facilities are used to establish the trap and trace or pen register or to those people who assist with applying the surveillance order who must not disclose that surveillance is being undertaken. Before this it had only applied to the person owning or leasing the line.

Definitions

The following terms were redefined in the US Code's chapter 206 (which solely deals with pen registers and trap and trace devices):

Court of competent jurisdiction: defined in 18 U.S.C. § 3127(2), subparagraph A was striked and replaced to redefine the court to be any United States district court (including a magistrate judge of such a court) or any United States court of appeals having jurisdiction over the offense being investigated (title 18 also allows State courts that have been given authority by their State to use pen register and trap and trace devices)
Pen register: defined in 18 U.S.C. § 3127(3), the definition of such a device was expanded to include a device that captures dialing, routing, addressing, or signaling information from an electronics communication device. It limited the usage of such devices to exclude the capturing of any of the contents of communications being monitored. 18 U.S.C. § 3124(b) was also similarly amended.
Trap and trace device: defined in 18 U.S.C. § 3127(4), the definition was similarly expanded to include the dialing, routing, addressing, or signaling information from an electronics communication device. However, a trap and trace device can now also be a "process", not just a device.
Contents: 18 U.S.C. § 3127(1) clarifies the term "contents" (as referred to in the definition of trap and trace devices and pen registers) to conform to the definition as defined in 18 U.S.C. § 2510(8), which when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.

Section 217: Interception of computer trespasser communications

Section 217 (Interception of computer trespasser communications) firstly defines the following terms:

Protected computer: this is defined in 18 U.S.C. § 1030(e)(2)(A), and is any computer that is used by a financial institution or the United States Government or one which is used in interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States.
Computer trespasser: this is defined in 18 U.S.C. § 2510(21) and references to this phrase means
1. a person who accesses a protected computer without authorization and thus has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer; and
2. does not include a person known by the owner or operator of the protected computer to have an existing contractual relationship with the owner or operator of the protected computer for access to all or part of the protected computer

Amendments were made to 18 U.S.C. § 2511(2) to make it lawful to allow a person to intercept the communications of a computer trespasser if

the owner or operator of the protected computer authorizes the interception of the computer trespasser's communications on the protected computer,
the person is lawfully engaged in an investigation,
the person has reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to their investigation, and
any communication captured can only relate to those transmitted to or from the computer trespasser.

Section 218: Foreign intelligence information

It appears that the while the sole purpose of surveillance, conducted by executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate, used to be to obtain foreign intelligence information, this is no longer. Section 218 (Foreign intelligence information) amended 50 U.S.C. § 1804(a)(7)(B) and 50 U.S.C. § 1823(a)(7)(B) (both FISA sections 104(a) (7)(B) and section 303(a)(7)(B), respectively) to change "the purpose" to "significant purpose". It is not clarified what this actually means.

Section 219: Single-jurisdiction search warrants for terrorism

Section 219 (Single-jurisdiction search warrants for terrorism) amended the Federal Rules of Criminal Procedure to allow a magistrate judge who is involved in an investigation of domestic terrorism or international terrorism the ability to issue a warrant for a person or property within or outside of their district. ^[25]

Section 220: Nationwide service of search warrants for electronic evidence

Section 220 (Nationwide service of search warrants for electronic evidence) gives the power to Federal courts to issue nationwide service of search warrants for electronic surveillance. However, only courts with jurisidiction over the offense can order such a warrant. This required ammending 18 U.S.C. § 2703 and 18 U.S.C. § 2711.

Section 221: Trade sanctions

Section 221 (Trade sanctions) amended the Trade Sanctions Reform and Export Enhancement Act of 2000. ^[26] This Act prohibits, except under certain specific circumstances, the President from imposing a unilateral agricultural sanction or unilateral medical sanction against a foreign country or foreign entity. The Act holds various exceptions to this prohibition, and the Patriot Act further amended the exceptions to include holding sanctions against countries that design, develop or produce chemical or biological weapons, missiles, or weapons of mass destruction. ^[27] It also amended the act to include the Taliban as state sponsors of international terrorism. In ammending Title IX, section 906 of the Trade sanctions act, the Taliban was determined by the Secretary of State to have repeatedly provided support for acts of international terrorism and the export of agricultural commodities, medicine, or medical devices is now pursuant to one-year licenses issued and reviewed by the United States Government. ^[28] However, the export of agricultural commodities, medicine, or medical devices to the Government of Syria or to the Government of North Korea were exempt from such a restriction. ^[29]

The Patriot Act further states that nothing in the Trade Sanctions Act will limit the application of criminal or civil penalties to those who export agricultural commodities, medicine, or medical devices to:

foreign entities who commit acts of violence to disrupt the Middle East peace process ^[30]
those deemed to be part of a Foreign Terrorist Organisation under the Antiterrorism and Effective Death Penalty Act of 1996
foreign entities or individuals deemed to support terrorist activities ^[31]
any entity that is involved in drug trafficking ^[32]
any foreign entity or individual who is subject to any restriction for involvement in weapons of mass destruction or missile proliferation.

Section 222: Assistance to law enforcement agencies

Section 222 (Assistance to law enforcement agencies) states that nothing in the Patriot Act shall make a communications provider or other individual provide more technical assistance to a law enforcement agency than what is set out in the Act. It also allows for the reasonable compensation of any expenses incurred while assisting with the establishment of pen registers or trap and trace devices. ^[33]

Section 223: Civil liability for certain unauthorized disclosures

18 U.S.C. § 2520(a) allows any person who has had their rights violated due to the illegal interception of communications to take civil action against the offending party. Section 223 (Civil liability for certain unauthorized disclosures) excluded the United States from such civil action.

If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of chapter 119 of the U.S. Code they may request an internal review from that agency or department. If necessary, an employee may then have administrative action taken against them. If the department or agency do not take action, then they must inform the notify the Inspector General who has jurisdiction over the agency or department, and they must give reasons to them why they did not take action. ^[34]

A citizen's rights will also be found to have been violated if an investigative, law enforcement officer or governmental entity discloses information beyond that allowed in 18 U.S.C. § 2517(a). ^[35]

U.S. Code Title 18, Section 2712 added

A totally new section was appended to Title 18, Chapter 121 of the US Code: Section 2712, "Civil actions against the United States". It allows people to take action against the US Government if they feel that they had their rights violated, as defined in chapter 121, chapter 119, or sections 106(a), 305(a), or 405(a) of FISA. The court may assess damages no less than $US10,000 and litigation costs that are reasonably incurred. Those seeking damages must present them to the relevant department or agency as specified in the procedures of the Federal Tort Claims Act.

Actions taken against the United States must be initiated within two years of when the claimant has had a reasonable chance to discover the violation. All cases are presented before a judge, not a jury. However, the court will order a stay of proceedings if they determine that if during the court case civil discovery will adversely affect the ability of the Government to conduct a related investigation or the prosecution of a related criminal case. If the court orders the stay of proceedings they will extend the time period that a claimant has to take action on a reported violation. However, the government may respond to any action against it by submitting evidence ex parte in order to avoid disclosing any matter that may adversely affect a related investigation or a related criminal case. The plaintiff is then given an opportunity to make a submission to the court, not ex parte, and the court may request further information from either party. ^[36]

If a person wishes to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under FISA, then the Attorney General may file an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States. In these cases, the court may review in camera and ex parte the material relating to the surveillance to make sure that such surveillance was lawfully authorized and conducted. The court may then disclose part of material relating to the surveillance. However, the court is restricted in they may only do this "where such disclosure is necessary to make an accurate determination of the legality of the surveillance". ^[37] If it then determined that the use of a pen register or trap and trace device was not lawfully authorized or conducted, the result of such surveillance may be suppressed as evidence. However, should the court determine that such surveillance was lawfully authorised and conducted, they may deny the motion of the aggrieved person. ^[38]

It is further stated that if a court or appropriate department or agency determines that an officer or employee of the United States willfully or intentionally violated any provision of chapter 121 of the U.S. Code they will request an internal review from that agency or department. If necessary, an employee may then have administrative action taken against them. If the department or agency do not take action, then they must inform the notify the Inspector General who has jurisdiction over the agency or department, and they must give reasons to them why they did not take action. (see above for a similar part of the Act)

Section 224: Sunset

Section 224 (Sunset) is a sunset clause. Title II and the amendments made by the title originally would have ceased to have effect on December 31, 2005, with the exception of the below sections. However, on December 22, 2005, the sunset clause expiration date was extended to February 3, 2006:

Title II sections that will **not** expire on February 3, 2006
Section	Section title
203(a)	Authority to share criminal investigation information : Authority to share Grand Jury information
203(c)	Authority to share criminal investigation information : Procedures
205	Employment of translators by the Federal Bureau of Investigation
208	Designation of judges
210	Scope of subpoenas for records of electronic communications
211	Clarification of scope
213	Authority for delaying notice of the execution of a warrant
216	Modification of authorities relating to use of pen registers and trap and trace devices
219	Single-jurisdiction search warrants for terrorism
221	Trade sanctions
222	Assistance to law enforcement agencies

Further, any particular foreign intelligence investigations that are ongoing will continue to be run under the expired sections.

Section 225: Immunity for compliance with FISA wiretap

Section 225 (Immunity for compliance with FISA wiretap) gives legal immunity to any provider of a wire or electronic communication service, landlord, custodian, or other person that provides any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance. This was added to FISA as section 105 (50 U.S.C. § 1805).

Notes and references

^ Analysis of Specific USA PATRIOT Act Provisions: Expanded Dissemination of Information Obtained in Criminal Investigations, Electronic Privacy Information Center. Accessed December 5, 2005.
^ Analysis of Specific USA PATRIOT Act Provisions: Authority to Conduct Secret Searches ("Sneak and Peek"), Electronic Privacy Information Center. Accessed December 5, 2005.
^ Analysis of Specific USA PATRIOT Act Provisions: Pen Registers, the Internet and Carnivore, Electronic Privacy Information Center. Accessed December 4, 2005.
^ EFF, "EFF analysis of the provisions of the USA PATRIOT Act that relate to online activities", "Were our Freedoms the Problem?", accessed December 19, 2005.
^ EFF, "EFF analysis of the provisions of the USA PATRIOT Act that relate to online activities", "B. Computer Crimes under CFAA Defined as 'Terrorist Offenses'", accessed December 20, 2005.
^ EFF, "Let the Sun Set on PATRIOT - Section 201: 'Authority to Intercept Wire, Oral, and Electronic Communications Relating to Terrorism,' and Section 805, 'Material Support for Terrorism'", access December 20, 2005.
^ EFF, "Let the Sun Set on PATRIOT - Section 202: Section 202, “Authority To Intercept Wire, Oral, And Electronic Communications Relating To Computer Fraud And Abuse Offenses,” and Section 217, “Interception Of Computer Trespasser Communications.", accessed December 22, 2005.
^ EFF, "Section 204: 'Clarification of Intelligence Exceptions From Limitations on Interception and Disclosure of Wire, Oral, and Electronic Communications.'", accessed December 28, 2005
^ EFF, "Let the Sun Set on PATRIOT - Section 206: 'Roving Surveillance Authority Under the Foreign Intelligence Surveillance Act of 1978'", accessed December 28, 2005
^ See Antiterrorism and Effective Death Penalty Act of 1996, section 434(2)
^ 18 U.S.C. § 2516(1)(c) — computer crime is a felony violation of 18 U.S.C. § 1030.
^ 20 U.S.C. § 401a
^ 18 U.S.C. § 2517
^ 18 U.S.C. § 2511(2)(f) was amended to allow this change
^ 50 U.S.C. § 1805(c)(2)(B)
^ Patrick Leahy, section by section analysis of the USA PATRIOT Act, section 209. Accessed November 12, 2005.
^ 18 U.S.C. § 2703
^ 18 U.S.C. § 2703(c)(2)
^ 18 U.S.C. § 2702(a)(3)
^ 18 U.S.C. § 3103a3103a (a) states that "a warrant may be issued to search for and seize any property that constitutes evidence of a criminal offense in violation of the laws of the United States"
^ 18 U.S.C. § 3103a
^FISA402-403 Section 402 of FISA (50 U.S.C. § 1842) and Section 403 of FISA (50 U.S.C. § 1843) were both amended
^ 18 U.S.C. § 3123(b)(1)
^ Federal Rules of Criminal Procedure, rule 41(a)
^ The Trade Sanctions Reform and Export Enhancement Act of 2000 is defined in title 22, chapter 79 of the United States Code
^ Trade Sanctions Reform and Export Enhancement Act of 2000, Title IX, section 904(2)(C); corresponds to 22 U.S.C. § 7203(2)(C).
^ Trade Sanctions Reform and Export Enhancement Act of 2000, title IX, section 906(A)(1) 22 U.S.C. § 7205(A)(1)
^ Trade Sanctions Reform and Export Enhancement Act of 2000, title IX, section 906(A)(2) 22 U.S.C. § 7205(A)(2)
^ This is defined in Executive Order No. 12947: "Prohibiting Transactions With Terrorists Who Threaten To Disrupt the Middle East Peace Process"
^ This is defined in Executive Order No. 13224: "Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism"
^ Defined in Executive Order No. 12978: "Blocking Assets and Prohibiting Transactions with Significant Narcotics Traffickers"; & the Foreign Narcotics Kingpin Designation Act
^ As defined in section 216 of the Patriot Act.
^ Defined in 18 U.S.C. § 2520(f) and 18 U.S.C. § 2707(d)
^ Defined in 18 U.S.C. § 2520(g) and 18 U.S.C. § 2707(g)
^ 18 U.S.C. § 2712(b)
^ 50 U.S.C. § 1806(f)
^ 50 U.S.C. § 1845(g)