Title II: Enhanced Surveillance Procedures

This title contains the act’s most controversial provisions. Title II extends the government’s authority to use wiretaps under the Foreign Intelligence Survey Act of 1978 (FISA). FISA authorized the government to conduct wiretap surveillance in foreign intelligence investigations, without having to show probable cause to obtain a warrant. Typically, the Fourth Amendment requires a showing of probable cause before a warrant will be issued in a criminal case. Before the Patriot Act, the government could conduct such wiretaps only where the primary purpose was to obtain foreign intelligence. The Patriot Act expanded the Fourth Amendment exception. Now, pursuant to section 218, FISA may be used where a “significant” purpose of the investigation is foreign intelligence gathering.

In 2001, laws did not exist regarding Internet surveillance. As the Internet grew, authorities relied on pre-Internet era wiretap laws to gather information. Essentially, whenever law enforcement personnel wanted access to Internet addresses (URLs), they sought authorization through the “pen register” and “trap and trace” laws of telephone surveillance. Pen registers capture the phone numbers of outgoing telephone calls. Trap and trace devices capture incoming phone numbers. Neither method captures the actual content of a telephone call, so investigators could obtain a search warrant without establishing probable cause that a crime was being committed. When faced with Internet surveillance requests, some judges applied the telephone surveillance rules, but others refused. In Section 216, the Patriot Act specifically applies pen register and trap-and-trace law to the Internet. Moreover, pen registers and trap and trace wiretaps are valid nationwide, not just in the jurisdiction of the court that approved it. The section does not permit examination of the content of a communication. Nevertheless, critics argue that web addresses are different than telephone numbers. According to the ACLU, “When we ‘visit’ a Web page what we are really doing is downloading that page from the Internet onto our computer…. That is much richer information than a single list of the people we have communicated with; it is intimate information that reveals who we are and what we are thinking about-much more like the content of a phone call than the number dialed.”

Section 214 deals with wiretapping authority under FISA and makes it easier for authorities to obtain approval for pen register and trap and trace wiretap devices. Investigators must certify that information obtained will be relevant to an investigation, rather than the previous, stricter standard that permitted wiretaps when a line was used for communications with someone involved in terrorism.

Section 209 permits seizure of voice mail messages with a search warrant. Previously, authorities needed a wiretap order.

Title II also gives the government broad authority to share “electronic, wire, and oral interception information” gleaned from an investigation with other federal agencies. Pursuant to FISA, it also allows authorities to compel Internet service providers to disclose information about a user’s e-mail activity, and to compel businesses to turn over personal information related to a criminal investigation. Moreover, section 213 provides that authorities executing a search warrant may delay notice of the search under certain circumstances. Critics allege this delay impinges upon a person’s right to challenge the constitutionality of the search.

Pursuant to the act, the federal government may examine the library records of patrons without their knowledge. The American Library Association (ALA) has condemned this authorization, arguing that it violates user privacy and thereby threatens the free access to knowledge and information. The 64,000-member ALA passed the resolution in early 2003.

Section 224 is a sunset provision, intended to allay concern over the controversy in some of its sections. Accordingly, a number of the act’s surveillance and intelligence- gathering provisions, if not re-approved, were set to expire on December 31, 2005. The House of Representatives voted on December 14, 2005, by a vote of 251 to 174, to extend the law for another four years. The House voted to renew sections that permit roving wiretaps. Roving wiretaps are wiretaps placed on every telephone a suspect uses. It also approved extension of provisions that permit the FBI to use secret warrants to obtain medical, business, and library records. In the Senate, however, the re-approval process was much more uncertain. Finally, the Senate and House compromised and approved a renewal of the act in March 2006.

Provisions in Title II have been successfully employed in non-terrorist cases. In an address to Congress on July 13, 2004, Attorney General John Ashcroft noted several instances where provisions in Title II were used in domestic criminal investigations. The cases cited involved sexual predators and electronic surveillance under sections 210 and 212 of the act. Ashcroft told Congress, “When it comes to saving lives and protecting freedom, we must use the Patriot Act and every legal means available to us.”


Inside Title II: Enhanced Surveillance Procedures