March 12, 2006
Included below are the most prominent changes made to the USA PATRIOT Act (USAP) by HR 3199, the PATRIOT Act re-authorization bill that was recently signed by the President. Other major provisions are summarized as well.
Summary produced by Matt Ehling 3-11-06
MAJOR CHANGES TO USA PATRIOT ACT AUTHORITIES
ROVING WIRE TAPS
USAP 2001: Section 206 of the original PATRIOT Act allowed the FISA court to issue orders for roving wire taps even if FBI agents had not identified the specific devices or facilities to be tapped. This roving wiretap authority was later amended by additional legislation that allowed the FISA court to issue such taps even if FBI agents did not specifically identify the person targeted by the tap. This provision was criticized for violating the specificity requirement of the 4th Amendment, which mandates that warrants must cite specific information about the target.
USAP 2006: HR 3199 sunsets the original USAP section 206, and stipulates that FISA orders for roving wire-tapes must include information about the “specific target of the electronic surveillance identified or described in the application.” Furthermore, in relation to the “roving” authority, FBI agents must alert the court every 10 days after the wiretap location or device changes. Agents must also articulate the facts and circumstances that justify the new surveillance.
HR 3199 also adds additional FISA reporting requirements about the use of roving wire taps.
SNEAK AND PEEK SEARCHES
USAP 2001: The PATRIOT Act modified pre-existing powers allowing police to secretly search a home or business in certain circumstances, and to delay notification of the search. Prior to the PATRIOT Act, courts allowed these searches to occur in very limited and specific circumstances, and they set a limitation on the duration of the secrecy – anywhere from 7 to 45 days, depending on jurisdiction. The PATRIOT Act, however, allowed a potentially indefinite notification delay, and contained broad language authorizing the use of these searches.
USAP 2006: HR 3199 limits the duration of the notification delay to thirty days, unless “the facts of the case justify a longer period of delay.” Even if a 30 day delay is initially granted, this delay can be extended for an additional 90 days, for “good cause shown”. This 90 day period can also be extended by a judge if “the facts of the case justify a longer period of delay.”
HR 3199 also changes the definition of which “adverse results” might justify delays in warrant notification. These adverse results cannot now include “unduly delaying a trial.” Additional congressional reporting requirements about the use of warrant notification delays have also been added.
SEIZURE OF “TANGIBLE THINGS” UNDER FISA
USAP 2001: Section 215 of the PATRIOT Act (the “library provision”) allowed FBI agents to seize “tangible things” including business records of all kinds with only a perfunctory showing that the items were related to a foreign intelligence investigation. Section 215 also gave judges little discretion in denying such seizures. In addition, it was not possible for parties served with section 215 orders to seek the assistance of counsel in challenging such orders.
USAP 2006: The original section 215 of the PATRIOT Act is sunset by HR 3199.
HR 3199 now requires that applications for orders to produce tangible things include “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) … to obtain foreign intelligence information not concerning a United States person” or other categories of foreign agents or suspected foreign agents defined by the FISA law. This change requires a standard of “relevance” for such requests that the original USAP did not articulate. “Relevance” is a lesser standard than “probable cause”, which is traditionally required for physical searches. The “relevance” standard, however, has been held by courts to be sufficient for many third party record searches in criminal cases.
Under HR 3199, it is clarified that FISA judges have the authority to deny applications for tangible things if the applications do not meet the “relevance” standard. Seizure orders must also specify with particularity the items to be seized, which was not true before. The order must also specify a return date for the items seized.
Also, the revised section 215 does not allow FBI field agents to request the seizure of book store, library, medical, or firearm records without the approval of the FBI director, deputy director, or executive assistant director for national security. While gag orders for these orders still exist, HR 3199 now stipulates that attorneys may be notified, to enable challenges for the production of items under these orders. Such challenges may be filed with a pool of three FISA judges who have been authorized to review these petitions.
HR 3199 also adds a semiannual six-month review of the use of these orders, to be provided to the Congressional intelligence committees on an ongoing basis. It also establishes a DOJ Inspector General audit of the “use, including improper or illegal use, of the investigative authority” provided to enable “tangible thing” seizures.
NATIONAL SECURITY LETTERS
USAP 2001: NSLs are orders to produce internet, financial, or related types of records. They are orders produced by FBI agents, with no judicial supervision. Under the original PATRIOT Act and prior FISA statutes, they came with a (potentially) perpetual gag order, and they were not allowed to be challenged in court.
USAP 2006: HR 3199 allows persons served with an NSL to seek judicial review of the order, and it allows a judge to set aside the order if it is found that it “would be unreasonable or oppressive or otherwise unlawful.” Persons served may also seek judicial review to remove the NSL gag order. Additionally – attorneys are allowed an exception to the gag order for the purpose of consulting with their clients. However, judges may not set aside the gag order if the FBI certifies that setting aside the order will jeopardize “the national security of the United States” … interfere “with a criminal, counterterrorism, or counterintelligence investigation” … “interference with diplomatic relations, or danger to the life or physical safety of any person.” If an FBI agent makes such a certification, it will be treated by the court as “conclusive” unless the court finds that such certification was “made in bad faith” – a very high legal standard.
Reports on the use of NSLs will be provided on a semiannual basis to select Congressional committees.
HR 3199 provides criminal penalties for knowing violating the NSL gag order. Such penalties include fines or imprisonment for not more than five years.
“LONE WOLF” PROVISION
This recently changed provision of the FISA law allows the court to order surveillance of “non-US” individuals who are not agents of foreign powers. Critics note that this exception undermines the original purpose of FISA, which was to grant a limited exception to the 4th amendment for the surveillance of foreign agents. This provision was originally set to sunset in December of 2005.
USAP 2006: The “lone wolf” provision will now sunset in December of 2009.
SENSE OF CONGRESS RELATING TO LAWFUL POLITICAL ACTIVITY
HR 3199 includes language stating that “It is the sense of Congress that government should not investigate an American citizen solely on the basis of the citizen’s membership in a non-violent political organization or the fact that the citizen was engaging in other lawful political activity.”
PEN REGISTER/TRAP AND TRACE
FISA has been amended so that a greater amount of information can be disclosed to intelligence agents using trap and trace or pen register devices. These devices can be installed by a FISA court order, and are used to track incoming and outgoing phone numbers from telecommunications devices. Under HR 3199, an FBI agent with a valid trap/trace order can compel a telecommunications company to disclose:
`(i) in the case of the customer or subscriber using the service covered by the order (for the period specified by the order)–
`(I) the name of the customer or subscriber;
`(II) the address of the customer or subscriber;
`(III) the telephone or instrument number, or other subscriber number or identifier, of the customer or subscriber, including any temporarily assigned network address or associated routing or transmission information;
`(IV) the length of the provision of service by such provider to the customer or subscriber and the types of services utilized by the customer or subscriber;
`(V) in the case of a provider of local or long distance telephone service, any local or long distance telephone records of the customer or subscriber;
`(VI) if applicable, any records reflecting period of usage (or sessions) by the customer or subscriber; and
`(VII) any mechanisms and sources of payment for such service, including the number of any credit card or bank account utilized for payment for such service; and
`(ii) if available, with respect to any customer or subscriber of incoming or outgoing communications to or from the service covered by the order–
`(I) the name of such customer or subscriber;
`(II) the address of such customer or subscriber;
`(III) the telephone or instrument number, or other subscriber number or identifier, of such customer or subscriber, including any temporarily assigned network address or associated routing or transmission information; and
`(IV) the length of the provision of service by such provider to such customer or subscriber and the types of services utilized by such customer or subscriber’.
REPORT ON DATA MINING ACTIVITIES
HR 3199 compels the Attorney General to produce a report on DOJ efforts to employ data mining techniques. The report requires that several areas be addressed, including, “An assessment of the likely impact of the implementation of the pattern-based data-mining technology on privacy and civil liberties.” HR 3199 does not provide for the production of similar reports from other federal agencies, such as the Department of Defense.
INTERFERENCE WITH NATIONAL SECURITY SPECIAL EVENTS
A new uniformed division of the secret service is created, in order to patrol and secure “national security special events” where the president or other dignitaries may meet. This police force has arrest authority. HR 3199 also criminalizes the activity of persons who “willfully and knowingly … enter or remain in any posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting.” Such activities may be punished by fines, or imprisonment for not more than one year, or up to ten years if the person carries a dangerous weapon.
OTHER NEW CRIMINAL PENALTIES
New criminal penalties are added for the production and distribution of methamphetamines, for interfering with maritime vessels or ports, for money laundering, and for false entry.