Telecommunications Law Thesis paper

Telecommunications Law

The USA Patriot Act was passed by Congress in response to the terrorist attacks of September 11, 2001. The Act allows federal officials to have greater authority in tracking and intercepting communications, for purposes of law enforcement and foreign intelligence gathering. It gives the Secretary of the Treasury regulatory powers to fight corruption of U.S. financial institutions for foreign money-laundering purposes. It more actively works to close the U.S. borders to foreign terrorists and to detain and remove those that are already within our borders. It establishes new crimes, new penalties and new procedural techniques for use against domestic and international terrorists (Patriot Act, 2009).

There has been a lot of protest over certain sections of the Patriot Act. Some of the more controversial sections of the Patriot Act include:

Section 215 which modifies the rules on records searches so that third-party holders of financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records can be searched without knowledge or consent in the even that the government says it’s trying to protect against terrorism.

Section 218 adjusts the Foreign Intelligence Surveillance Act (FISA) which authorizes secret searches without public knowledge or Department of Justice accountability as long as the government can allege a foreign intelligence basis for the search.

Section 213 extends the authority of FISA searches to any criminal search. This makes it possible for secret searches to be done of one’s home and property without prior notice.

Section 214 allows for the removal of the warrant requirement for Pen registers. These allow for the getting of phone numbers dialed from a suspect’s telephone and Trap and trace devices which monitor the sources of all incoming calls.

Section 216 spells out that pen register/trap-and-trace authority as it applies to Internet surveillance. It changes the language to include Internet monitoring to specifically include information about dialing, routing, and signaling.

Section 206 authorizes roving wiretaps which allows taps on every phone or computer the target may use, and 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.

Section 505 sanctions the use of an administrative subpoena of personal records, without requiring probable cause or judicial oversight.

Section 802 makes a category of crime called domestic terrorism which penalizes activities that involve acts that are dangerous to human life and that are a violation of the criminal laws of the United States.

Section 411 makes any association with terrorists a deportable offense.

Section 412 gives the attorney general authority to order a brief detention of aliens without any prior showing or court ruling that the person is dangerous (Patriot Act, 2009).

History has shown that in times of war or threat to our country’s national security, our government will tend to relax restrictions on violations of American civil liberties. Experts feel that if the government uses too much self-restraint in the surveillance and apprehension of persons presenting a potential threat to the security of the United States that our national security will be in jeopardy. Immediately after the terrorist attacks of September 11, 2001, the U.S. government responded to the perceived need for broader governmental powers in detecting and preventing future terrorist attacks by enacting the U.S.A. Patriot Act (USAPA) on October 26, 2001 (Patriot Act, 2009).

On October 26, 2001, the U.S.A. Patriot Act was singed into law by President Bush. Patriot gave comprehensive new powers to both domestic law enforcement and international intelligence agencies while eliminating the checks and balances that previously gave courts the opportunity to ensure that such powers were not abused. These checks and balances were put into place after previous misuse of surveillance powers by different agencies that have included the revelation in 1974 that the FBI and foreign intelligence agencies had spied on over 10,000 U.S. citizens, including Martin Luther King (EFF Analysis of the Provisions of the U.S.A. PATRIOT Act, 2003).

Congress had introduced the U.S.A. Patriot Act with the principal aim of preventing and punishing terrorist acts in the United States and around the world, along with enhancing law enforcement investigative tools. Given the obvious need for prompt and immediate action in the wake of September 11th, the U.S.A. Patriot Act was approved by Congress and the president without the normal procedural review processes of intensive debate and hearings. It is a lengthy piece of legislation making broad and fundamental changes to the previous law governing the executive branch’s powers in law enforcement and intelligence (Patriot Act, 2009).

The most notable provision in the Patriot Act called for: the enhancement of domestic security against terrorism, the enhancement of surveillance procedures, the abatement of money laundering and terrorism financing, the protection of the northern border, the removal of obstacles to the investigation of terrorism, the provision of aid and assistance to victims of terrorism, public safety officers, and their families, increased information sharing to go on between federal, local, and state governments, the strengthening of criminal laws against terrorism and the improvement of intelligence capabilities. Even though the intent was to address the security needs of the United States in the wake of the terrorist attacks of September 11th, the act made special provisions for the preservation of the civil rights and civil liberties of all Americans. This included Arab-Americans, Muslim Americans, and Americans from South Asia, and states that every effort must be taken to preserve their safety. The Patriot Act condemned discrimination against Arab and Muslim Americans and demanded acts of violence against those individuals be punished to the full extent of the law (Patriot Act, 2009).

The enhancements of the government’s power of search and seizure now permits expanded government search capabilities with less judicial oversight. The Patriot Act also greatly expanded the authority to intercept wire, oral, and electronic communications relating to terrorism, and to investigate computer fraud and abuse offenses. Instead of just enhancing the abilities of the federal government to engage in domestic surveillance of individuals, the act also calls upon citizens to report the suspicious activity of persons and businesses, thereby making the American public the eyes and ears of the government. This was intended to overcome limitations in the government’s resources and ability to monitor and detect potential terrorist threats and other crimes. The government also benefits from increased powers of record examination because they can now view educational, library, medical and financial records without demonstrating evidence of commission of a crime. The government is also able to employ its newly acquired surveillance capabilities to review personal internet use (Patriot Act, 2009).

The aim of the Patriot Act was to remove hindrances to the detection and prevention of terrorist threats. In addition to enhancing the federal government’s surveillance capabilities, the act made wide spread changes in the relationship between law enforcement and intelligence agencies, by breaking down traditional barriers to their coordination and cooperation. The Patriot Act provided for the expanded sharing of information that was gathered as part of criminal investigations with intelligence agencies and the expanded use of foreign intelligence surveillance tools and information in criminal investigations (Patriot Act, 2009).

History has shown that in the mid-1970s, Congressional investigations revealed extensive domestic surveillance and intelligence abuses by the executive branch of the government. Lawmakers expressed concern about the potential for civil liberties violations by domestic law enforcement and intelligence agencies. So in 1947 the National Security Act of 1947 became law. This established the Central Intelligence Agency. The law stated that the CIA would have no police, subpoena, or law enforcement powers or internal security functions. Although limitations already existed on executive branch abuses in this area, Congress tried to create a greater system of checks and balances against such abuses (Patriot Act, 2009).

Because of these Congressional investigations, the Foreign Intelligence Surveillance Act of 1978 (FISA) was enacted. This required that there be court orders for national security electronic surveillance in the United States. The intended aim of FISA was to restrain the power of the federal government, in particular law enforcement agencies of the executive branch, from engaging in unregulated domestic surveillance of individuals (Patriot Act, 2009).

Prior to the enactment of the Patriot Act there had been several attempts made to broaden and expand the government’s surveillance authority. In 1995, Senator Joseph Lieberman proposed an amendment to the bill that became the Antiterrorism and Effective Death Penalty Act of 1996 which would have expanded the government’s authority to conduct emergency wiretaps in cases of domestic or international terrorism. Congress, however, was reluctant to expand wiretap laws any further which led to the defeat of Senator Lieberman’s amendment. Although the act significantly curtailed judicial oversight of law enforcement and intelligence activities, it did provide for congressional oversight of the executive branch’s expanded powers by creating a Senate Judiciary Committee that must examine how these newly granted powers are exercised (Patriot Act, 2009).

The justification for the expansion of the executive branch’s authority in the short-term was very clear at the time that this act was passed. The law’s intended purpose of preventing and detecting future attacks was the dominant concern of lawmakers. Yet, the hasty manner in which the law passed through Congressional lawmaking processes causes opponents to argue that lawmakers gave disproportionate consideration to the law enforcement and intelligence community’s viewpoint in drafting the provisions. It is thought that in the future the law will face many challenges in the court system. Even though the security concerns of the United States may have temporarily overridden these challenges, it is possible that certain controversial provisions of the law may not withstand judicial challenges in the future (Patriot Act, 2009).

Communications networks are often thought of as a defining feature of modem life. Hundreds of millions of Americans use the postal system, the telephone network, and the Intemet to communicate with each other everyday. Although these technologies differ from each other in important ways, they share one common function. They are all global communications networks that allow users to send, receive, and store information. Communications networks can also provide an arena for the commission of criminal acts. Networks can be used by criminals to contact co-conspirators, deliver threats, further frauds, or engage in many other criminal activities. When communications networks are used to promote crimes, the network itself becomes a crime scene. Telephone records, stored emails, and undelivered packages can often contain important clues to be used by law enforcement. Just like in a physical neighborhood, the networks themselves become surveillance zones, complete with criminals that are seeking to evade detection by the police that are trying to catch them. A basic framework is necessary to understand the legal rules that apply to the surveillance of communications networks such as the Internet, the postal network, or the telephone network (Kerr, 2003).

The basic purpose of a communications network is to send and receive communications. As a result, every communications network features two types of information: the contents of communications, and the addressing and routing information that the networks use to deliver the contents of communications. The first part is known as content information and the second part is the envelope information. The distinction between content and envelope information remains constant across many different technologies. With postal mail, the content information is the letter itself, stored safely inside its envelope. The envelope information is the information that is on the outside of the envelope, including the mailing and return addresses, the stamp and postmark, and the size and weight of the envelope when sealed. The distinction is very similar for telephone conversations. The content information for a telephone call is the actual conversation between participants that can be captured by an audio recording of the call. The envelope information includes the number the caller dials, the number from which the caller dials, the time of the call, and its duration. This calling information is not visible in the same way that the envelope of a letter is, but it compares roughly with the information derived from the envelope of a letter. In both cases, the envelope information contains to-and-from addressing, data about the time the communication was sent, and information about the communication’s size and length (Kerr, 2003).

Legal rules that govern the surveillance of communications networks are generally divide into two types: rules that concern government surveillance of the network for law enforcement purposes, and rules that govern the network providers who may conduct surveillance of their own and wish to disclose the information to the government. In any communications network, the service provider who administers each segment of the network is responsible for that portion of the network. A network can have a single provider like the United States Postal Service. The Postal Service enjoys a statutory monopoly over the United States postal mail system. Most networks however are much decentralized. The Internet provides a clear example of a highly decentralized network. No one owns the Intemet as a whole. Instead, thousands of independent Intemet service providers (ISPs) each administer small comers of the network. Rules governing provider surveillance are quite important because providers often need to look at their comer of the network for a variety of business related reasons. One is example is that the phone company may need to keep records of calls for long-distance billing (envelope surveillance) or may need to listen to calls on occasion to combat telephone fraud or assess the quality of the line (content surveillance). Just the same, ISPs may need to maintain email logs, or intercept communications in transit to determine the source of a network problem or search out an unauthorized intruder. Many times providers discover evidence of a crime on their own and report it to law enforcement officials (Kerr, 2003).

The passage of the U.S.A. Patriot Act on October 26, 2001 has been widely portrayed as a dark moment for the civil liberties of Internet users. The ACLU declared that the Act gave law enforcement astonishing new powers. Another civil liberties group, the Electronic Frontier Foundation, announced that the civil liberties of ordinary Americans have taken a tremendous blow with this law (Kerr, 2003). They believe this because of the provisions that deal with the right to privacy in our online communications and activities. And even thought there is no evidence that our previous civil liberties posed a barrier to the effective tracking or prosecution of terrorists, they are upset with the fact, that in asking for these broad new powers, the government has not shown that previous powers given to law enforcement and intelligence agencies to spy on U.S. citizens were insufficient in allowing them to investigate and prosecute acts of terrorism. The processes that lead to the passage of the bill did little to ease these concerns. On the contrary, civil liberties groups feel that they were amplified by the inclusion of so many provisions that, instead of being aimed at terrorism, are aimed at nonviolent, domestic crimes (EFF Analysis of the Provisions of the U.S.A. PATRIOT Act, 2003).

The Patriot Act expands all four traditional tools of surveillance that is used by law enforcement. These include wiretaps, search warrants, pen/trap orders and subpoenas. Their equivalents under the Foreign Intelligence Surveillance Act (FISA) that allow spying by foreign intelligence agencies have similarly been expanded as well. This means that the government may now monitor the online activities of Americans, and track what Web sites a person reads. The person being spied on does not have to be the target of the investigation. This application must be granted and the government is not obligated to report to the court or tell the person spied upon (EFF Analysis of the Provisions of the U.S.A. PATRIOT Act, 2003).

The Patriot Act allows the FBI and CIA to go from phone to phone and computer to computer without showing that each is being used by a suspect or target of an order, or even specifically identifying the person targeted. The act allows the government to serve a single Title III wiretap, FISA wiretap or pen/trap order on any person or entity nationwide, regardless of whether that person or entity is named in the order. The government does not have to make any showing to a court that the particular information or communication to be acquired is relevant to a criminal investigation. In the case of pen/trap or FISA situations, they do not have to report where they served the order or what information they received from it. The EFF believes that the opportunities for abuse of these broad new powers are tremendous. In regards to pen/trap orders, while ISPs or others who are not specifically named in the order do have the legal right to request certification from the Attorney General’s office that the order applies to them, they have no right to request such confirmation from a court (EFF Analysis of the Provisions of the U.S.A. PATRIOT Act, 2003).

The law made two changes in order to increase how much information the government may obtain about users from their ISPs or others who handle or store their online communications. First off it allows ISPs to voluntarily hand over all non-content information to law enforcement with no need for any court order or subpoena and second, it expands the records that the government may seek with a simple subpoena to include records of session times and durations, temporarily assigned network (I.P.) addresses, and means and source of payments, including credit card or bank account numbers (EFF Analysis of the Provisions of the U.S.A. PATRIOT Act, 2003).

The EFF feels that several provisions of the Patriot Act have no apparent connection to preventing terrorism. These include: Government spying on suspected computer trespassers with no need for court order. Being able to add samples to DNA database for those convicted of any crime of violence. This provision allows for the collection of DNA for terrorists, but also allows collection for the broad, non-terrorist category of any crime of violence. Wiretaps are now allowed for suspected violations of the Computer Fraud and Abuse Act, including anyone suspected of exceeding authorized access to a computer used in interstate commerce and thereby causing over $5,000 worth of combined damage. Dramatic increases to the scope and penalties of the Computer Fraud and Abuse Act, including: raising the maximum penalty for violations from 5 years to 10 for a first offense and 10 years to 20 for a second offense; making sure that violators only need to intend to cause damage generally, not intend to cause damage or other specified harm over the $5,000 statutory damage threshold; allowing aggregation of damages to different computers over a year to reach the $5,000 limit; enhancing punishment for violations involving any damage to a government computer involved in criminal justice or the military (EFF Analysis of the Provisions of the U.S.A. PATRIOT Act, 2003).

The EFF also feel that the Patriot Act allows Americans to be more easily spied upon by U.S. Foreign Intelligence Agencies. Just as the domestic law enforcement surveillance powers have expanded, the corollary powers under the Foreign Intelligence Surveillance Act have also been greatly expanded to include:

General Expansion of FISA Authority. FISA has been given the authority to spy on Americans or foreign persons in the U.S. along with those who communicate with them. This has increased from situations where obtaining foreign intelligence information is the reason for the surveillance to anytime that it is a significant purpose of the surveillance.

Information sharing between domestic law enforcement and intelligence has increased. This is a partial retraction of the blocks that were put up in the 1970s after the discovery that the FBI and CIA had been conducting investigations on over half a million Americans during the McCarthy era. It allows wiretap results, grand jury information and other evidence collected in a criminal case to be disclosed to the intelligence agencies when the information constitutes foreign intelligence information (EFF Analysis of the Provisions of the U.S.A. PATRIOT Act, 2003).

The EFF urges that the following needs to happen in the future:

1. Law enforcement and the intelligence agencies that use these new powers should do so carefully and limit their use to bona fide investigations into acts of terrorism.

2. Courts should appropriately punish those who misuse these new laws and Congress should reexamine its decision to grant such broad, unchecked powers.

3. If these laws are misused to harm the rights of ordinary Americans involved in low-level crimes unrelated to terrorism, the courts should refuse to allow evidence collected through use of these broad powers to be used in prosecuting them.

4. ISPs and others served with roving wiretaps and other Orders that do not specify them as recipients should require the Attorney General to certify that the order properly applies to them.

5. Congress should require the law enforcement and intelligence agencies who operate under provisions of the Patriot Act that are set to expire in December, 2005, should provide comprehensive reports about the use of these new powers, to enable Congress to reasonably determine whether these provisions should be renewed or not (EFF Analysis Of The Provisions Of The U.S.A. PATRIOT Act, 2003).

U.S. law has provided four basic mechanisms to be used for surveillance on people living in the United States. The first is interception orders authorizing the interception of communications. The second is search warrants authorizing the search of physical premises and seizure of tangible things like books or other evidence. The third is pen register and trap-and-trace device orders, which authorize the collection of telephone numbers dialed to and from a particular communications device. And the fourth is subpoenas compelling the production of tangible things, including records. Each of these mechanisms has its own proof standards and procedures based on the Constitution, statutes, or both (EFF Analysis of The Provisions of the U.S.A. PATRIOT Act, 2003).

U.S. law provides two separate paths with differing proof standards and procedures for each of these mechanisms depending upon whether surveillance is done by domestic law enforcement or foreign intelligence. All of these have been expanded by the Patriot Act. When surveillance is conducted in the context of domestic law enforcement purposes, the probable cause standard of the Fourth Amendment applies to interception orders and search warrants. On the other hand when there is a court order compelling an ISP to produce e-mail logs and addresses of past e-mail a correspondent uses a lower standard. The government must show specific and particular facts showing reasonable grounds to believe that the records are relevant and material to an ongoing criminal investigation. A pen/trap order uses a different standard which is considered even lower. The government only has to tell the court that the surveillance is relevant to a criminal investigation. The standard for subpoenas is also thought to be very low (EFF Analysis of the Provisions of the U.S.A. PATRIOT Act, 2003).

When dealing with foreign intelligence surveillance the standard of proof and procedures for each mechanism is different. One difference is that foreign intelligence surveillance is not based on the concept of criminality. Under the Foreign Intelligence Surveillance Act (FISA), the issue is whether the intended surveillance target is an agent of a foreign power or a foreign power. In the case that the target of the surveillance is a U.S. citizen or permanent resident alien then the government must show probable cause of criminality (EFF Analysis of the Provisions of the U.S.A. PATRIOT Act, 2003).

FISA also allows a secret court to authorize United States intelligence agencies to conduct surveillance using each of the four basic mechanisms. One example is FISA interception orders involving U.S. persons being issued by the secret court based on an application from the Attorney General. The application would state the reasons to believe that the surveillance target is an agent of a foreign power or a foreign power, certifying that the purpose of the surveillance is to gather foreign intelligence information, and several other facts and representations. The secret court’s role here is quite limited in that it is not supposed to second-guess the government’s certifications or representations. As you would have thought, the secret FISA court has only denied one application in its twenty-years plus of existence. FISA does not necessitate reports to the court about what the surveillance found. There is never a time when reports of what is being sought or what information is retrieved are available to the public. Therefore, the secret court’s only practical accountability is in a district court when a surveillance target is prosecuted and seeks to suppress the fruits of FISA surveillance (EFF Analysis of the Provisions of the U.S.A. PATRIOT Act, 2003).

The requirements of FISA in regards to electronic surveillance is directed solely at means of communications used exclusively between or among foreign powers and when it is unlikely that communications to which a U.S. person is a party will be intercepted, are even weaker. In these cases, surveillance may proceed for up to a year without a court order. Right after the September 11 attacks, electronic surveillance was conducted pursuant to FISA orders. There have been no reports that the limitations of FISA power posed any problems for the government (EFF Analysis of the Provisions of the U.S.A. PATRIOT Act, 2003).

Some experts feel that the Patriot Act did not expand law enforcement powers dramatically, as its critics have alleged. In fact they feel that the Patriot Act made mostly minor amendments to the electronic surveillance laws. Many of the amendments merely codified law that already existed. Some of the changes were seen as expanding law enforcement powers, but others were put into place to protect privacy and civil liberties. Several of the most controversial amendments actually may increase privacy protections, rather than decrease them. Most significantly, none of the changes altered the basic statutory structure of electronic surveillance law created by the Electronic Communications Privacy Act of 1986 (Kerr, 2003).

When one really focuses on the Intemet surveillance provisions that were passed into law, it becomes clear that the popular understanding of the Patriot Act is largely wrong. The Patriot Act did not tip the balance between Intemet privacy and security strongly in favor of security. Most of the Patriot Act’s key changes reflected reasonable compromises that updated antiquated laws. Some of these changes advance law enforcement interests, but others advance privacy interests, and several do both. None challenged the basic legal framework that Congress created in 1986 to protect Intemet privacy. Studying the Intemet surveillance provisions of the Act suggests that the media portrayal of the Patriot Act as extraordinary and panicky legislation has little in common with the law that Congress actually enacted (Kerr, 2003).

One of the most controversial provisions of the Patriot Act is the amendment that made the pen register law applicable to the Intemet. The pen register law has governed prospective envelope surveillance of the telephone since Congress enacted it in 1986, and the Patriot Act makes clear that this law also applies to the Internet. The press uniformly presented this change as a significant expansion of law enforcement authority. The Washington Post said that this change made it easier for the government to engage in wiretapping by lowering the standard of judicial review. The New York Times explained the change as a grant of broad authority to inspect logs of Intemet use and the address fields of email messages. Both the political left and the political right agreed that this was a significant and potentially dangerous change (Kerr, 2003).

The pen register amendments to the Patriot Act do not signal an unwarranted expansion of law enforcement authority. Just the opposite, the changes reaffirm existing law that aligns Intemet surveillance law with postal and telephone surveillance. Most importantly, to the extent that the amendments actually changed the law at all, on the whole they probably added to the privacy of Intemet communications, rather than subtracted from it. The pen register amendments that have been portrayed as unwarranted expansions of law enforcement authority are neither unwarranted, nor even expansions of authority. This does not mean that Congress could not increase the privacy protections of the pen register law in the future. It turns out that the Patriot Act is not the source of the problem, but rather the first step toward a better solution (Kerr, 2003).

Another major criticism of the U.S.A. Patriot Act centers on a new exception to the Wiretap Act – the computer trespasser exception. The computer trespasser exception concerns prospective content surveillance and allows law enforcement to intercept the contents of Intemet communications sent by a computer trespasser without a warrant from the computer of a consenting victim of the trespasser. The computer trespasser exception proved so controversial that Congress enacted it only pursuant to a sunset provision meaning that the exception would cease to exist on December 31, 2005, unless Congress chose to reauthorize it (Kerr, 2003). On December 30, 2005, the Patriot Act provisions that were due to expire were extended with Public Law 109-160 that pushed the date from December 31, 2005 until February 3, 2006. The date of expiration was again changed from February 3, 2006 until March 10, 2006 with Public Law 109-170 on Feb. 3, 2006 (USA Patriot Act, n.d.).

In order to understand why the Wiretap Act needs a computer trespasser exception, it is necessary to look at how the Wiretap Act applies to the communications network for which it was designed, that being the telephone network. As enacted in 1968, the Wiretap Act imposed a strikingly broad privacy regime that protected essentially all telephone communications within the United States. The Act presumed that all telephone communications would occur between two human parties. It prohibited both the government and private parties from breaking into the communication with a surveillance tool to tap the contents of the communication without a special court order (Kerr, 2003).

Congress passed the Electronic Communications Privacy Act in 1986, which created the basic statutory framework for Intemet surveillance that exists today. Among the important changes brought about by ECPA was that the law applied the privacy protections of the telephone Wiretap Act to computer networks. The 1986 Act added electronic communications to the telephone wire communications that the Wiretap Act protected, bringing the entire Intemet within the broad protection of the wiretap laws. Adding Intemet email to the category of communications protected by the Wiretap Act made obvious sense. It also created a series of difficult analytical problems that its drafters apparently failed to foresee (Kerr, 2003).

The difficulty begins with the fact that there is a great deal to the Intemet beyond email. Intemet communications can consist of emails, but they also take the form of web pages in transit, computer commands sent to remote servers, music or pornography files, network traffic, and other communications. The Intemet does not just provide a means of letting people connect with other people. It also creates a communications network that supports a range of hardware and software that together foster a virtual world of cyberspace. The fact that the Internet is multifunctional creates a series of puzzling problems that complicates attempts to apply the Wiretap Act to it. This problem is matched with an even more puzzling question regarding who is a party to the communication. Who can consent to monitoring in the case of a human-to-computer or computer-to-computer communication? The extent of privacy protection that the Wiretap Act provides rests heavily on the answer to these questions (Kerr, 2003).

The Patriot Act was reaffirmed in 2006 after nearly nine months of debate in the House and Senate. The provisions in the Act, that were set to expire on Dec. 31, 2005, were temporarily extended twice in order to give lawmakers more time to debate the bill. Several events ended up delaying the reauthorization, including Hurricane Katrina and a New York Times report that revealed a program that allowed the National Security Agency to wiretap those suspected of potential terrorist activities within the United States without warrants from the FISA court (The U.S.A. Patriot Act, 2006).

The warrantless wiretapping program spurred those Democrats that opposed the bill to draw attention to what they considered civil liberties rollbacks in the legislation. One of the expiring provisions included letting federal officials obtain tangible items, such as business records, from libraries and bookstores, in connection with foreign intelligence and international terrorism investigations. Other provisions made clear that foreign intelligence or counterintelligence officers should share information obtained as part of a criminal investigation with counterparts in domestic law enforcement agencies. And yet other portions were designed to strengthen port security by imposing strict punishments on crew members who impede or mislead law enforcement officers trying to board their ships (The U.S.A. Patriot Act, 2006).

In the end there was a compromised version of the bill that aimed to include more civil liberties protections, such as language saying people who receive subpoenas granted under the Foreign Intelligence Surveillance Act for library, medical, computer and other records can challenge a gag order in court. The provisions that were set regarding the government authority to conduct roving wiretaps of targets with multiple phones or e-mail devices, and the government’s powers to seize business records with the FISA court’s approval are now set to expire Dec. 31, 2009 (The U.S.A. Patriot Act, 2006).

There are three provisions of the Patriot Act that will sunset at the end of the year. This presents a perfect opportunity for Congress to examine all of our surveillance laws and amend those that have been found unconstitutional or have been abused to collect information on innocent people, including last year’s changes to the Foreign Intelligence Surveillance Act (FISA) and the Attorney General Guidelines (AGGs). In spite of the many amendments to these laws since 9/11, congress and the public have yet to receive real information about how these powerful tools are being used to collect information on Americans and how that information is being used. All of these laws work together to create a surveillance superstructure and Congress must understand how it really works to create meaningful protections for civil liberties (Patriot Act – Eight Years Later, n.d.)

As Congress gets ready to consider extending many of the crucial provisions of the U.S.A. Patriot Act, civil liberties groups and some Democratic lawmakers are gearing up to press for sweeping changes to surveillance laws. Both the House and the Senate began holding their first committee hearings in September on whether to reauthorize three sections of the Patriot Act that expire at the end of this year. The provisions that might be expanded surround the power of the F.B.I. To seize records and to eavesdrop on phone calls in the course of a counterterrorism investigation (Patriot Act – Eight Years Later, n.d.)

Another provision allows the F.B.I. To get obtain a court order to seize any tangible things deemed relevant to a terrorism investigation. This could include things like a business’s customer records, a diary or a computer. It has been reported that from 2004 to 2009, the bureau used that authority more than 250 times. The final provision that is set to expire is called the lone wolf provision. This allows the F.B.I. To acquire a court order to wiretap a terrorism suspect who is not connected to any foreign terrorist group or foreign government. The FBI reports that this authority had never been used, but the bureau still wants Congress to extend it (Patriot Act – Eight Years Later, n.d.)

Many of the things that are up for discussion involve small wording shifts whose impact can be difficult to understand, in part because the statutes are extremely technical and some govern technology that is classified. Many civil libertarians and some Democrats have called for changes that would require stronger evidence of meaningful links between a terrorism suspect and the person whom investigators are targeting. Some are suggesting using any Patriot Act extension bill to tighten when the F.B.I. can utilize national security letters. These are administrative subpoenas that allow counterterrorism agents to seize business records without obtaining permission from a judge. Agents use the device tens of thousands of times every year (Patriot Act – Eight Years Later, n.d.)

Although the Patriot Act section that originally expanded the F.B.I.’s power to issue these letters is not expiring, they have become particularly controversial because the Justice Department’s inspector general issued two reports finding that F.B.I. agents have frequently misused this device in order to obtain bank, credit card and telephone records. Some civil libertarians even want lawmakers to revisit a June 2008 law in which Congress granted immunity from civil lawsuits to telecommunications companies that assisted President George W. Bush’s program of surveillance without warrants, and that adjusted federal statutes to bring them into alignment with a form of that program (Savage, 2009).

Recently the ACLU issued a report, Reclaiming Patriotism, that provided information on the parts of the Patriot Act that they feel need to be amended. These parts include:

National Security Letters (NSLs) – the FBI is reported to use NSLs to compel internet service providers, libraries, banks, and credit reporting companies to turn over sensitive information about their customers and patrons. In using this data, the government can compile vast dossiers about innocent people. Government reports confirm that somewhere in the neighborhood of 50,000 of these secret record demands go out each year. In an ACLU lawsuit (Doe v. Holder), the Second Circuit Court of Appeals struck down as unconstitutional the part of the NSL law that gives the FBI the power to prohibit NSL recipients from telling anyone that the government has secretly requested customer Internet records.

Material Support Statute — this provision criminalizes providing material support to any terrorists, defined as providing any tangible or intangible good, service or advice to a terrorist or designated group. Since being amended by the Patriot Act and other laws since September 11, this section criminalizes a wide array of activities, regardless of whether they actually or intentionally further terrorist goals or organizations. Federal courts have ruled portions of the statute as unconstitutional and a number of cases have been dismissed or ended in mistrial.

FISA Amendments Act of 2008 – Congress passed a law to permit the government to conduct warrantless and suspicion-less collections of U.S. residents’ international telephone calls and e-mails (Patriot Act – Eight Years Later, n.d.)

The Senate Judiciary Committee recently reported out a bill to extend and, ever so slightly, modify the Patriot Act. When Congress passed the Patriot Act shortly after Sept. 11, 2001, it put a five-year sunset on several provisions. In 2006, the president pushed for permanent renewal. Congress traded a few modifications for renewal, and retained a sunset on two of the provisions, Dec. 31, 2009. One provision authorizes the government to obtain roving wiretap orders from the secret Foreign Surveillance Intelligence Court (Battle over the future of the Patriot Act moves to Senate, 2009).

The other provision, Section 215, authorizes the government to obtain, from the same secret court; an order for any tangible thing the government has reasonable grounds to believe is relevant to a terrorism or espionage investigation. The owner of the thing may be above suspicion and may be a citizen residing in the United States. The law bars the owner from disclosing his or her receipt of the order, except to an attorney. Three federal district courts have ruled that Patriot Act gags are a violation of the First Amendment with respect to the usual notice sent by the FBI barring the recipient of a National Security Letter from talking about the letter. An NSL differs from a Section 215 order in that no judicial review of the former is necessary. The FBI, instead, secretly demands the production of whole categories of financial and electronic information such as credit reports and Internet searches. The FBI had the authority to issue a NSL before 9/11 but the Patriot Act increased the number of officials who could authorize an NSL, and reduced the standard of relevancy (Battle over the future of the Patriot Act moves to Senate, 2009).

As part of the 2006 trade-off, Congress directed the Justice Department’s Inspector General to conduct regular audits of the use of NSLs and Section 215 orders; however, those audits do not inspire confidence in our government. Given the lack of judicial review, it’s not surprising the NSL is the FBI’s tool of choice. What is surprising is the discrepancy in use between NSLs and Section 215 orders. In 2006, the most recent year for which data is available, the FBI issued 49,425 NSLs, whereas in 2007 it sought only six Section 215 orders. The Inspector General also found that the FBI duplicated demands, lost data and whole files, in many situations did not follow its own procedures on the issuance of NSLs and the requirements of the law, and collected private information from individuals two or three times removed from the subject of an investigation (Battle over the future of the Patriot Act moves to Senate, 2009).

One would think the audits’ revelations and court losses would prompt Congress to overhaul the Patriot Act. But instead the Senate Judiciary Committee has made only two minor adjustments, the more significant of which requires the FBI to discard any information obtained pursuant to an illegal NSL. The battle over the future of the Patriot Act has now moved to the Senate floor for debate (Battle over the future of the Patriot Act moves to Senate, 2009).

The USA Patriot Amendments Act of 2009 introduced into the House in October of 2009 amends the Foreign Intelligence Surveillance Act of 1978 (FISA) to revise requirements relating to roving electronic surveillance, production of records for counterterrorism investigations, and use of pen registers and trap and trace devices meaning devices for recording incoming and outgoing telephone numbers. It extends through December 31, 2013, the provisions of the U.S.A. Patriot Act authorizing: (1) roving electronic surveillance; and (2) orders for the production of records for counterterrorism investigations. It extends through 2013 audit requirements relating to orders for tangible things, pen registers and trap and trace devices, and the use of national security letters. It amends the federal criminal code to reduce from 30 to 7 days the period for giving notice to the target of a search warrant in a criminal investigation (H.R.3845, 2009).

The National Security Letter Reform Act of 2009 would be extended through December 31, 2013, the authority for issuance of national security letters. It would modify the standard for issuing national security letters to require a separate writing documenting specific and particular facts showing reasonable grounds to believe that the information sought pertains to a foreign power or an agent of a foreign power. It would require notice to a recipient of a national security letter of the right of judicial review of any nondisclosure requirement. It would require the Attorney General to authorize use of any information obtained from a national security letter in a criminal investigation. It would set forth procedures for judicial review of a national security letter nondisclosure order. It would require the Attorney General to establish minimization and destruction procedures for information obtained from a national security letter that is no longer of interest in an authorized investigation (H.R.3845, 2009).

Both of these bills will have to be approved by their respective houses of Congress before being combined into one bill that would then be vote on by the entire Congress. Some experts have wondered if this will get accomplished before the end of the year when some of the provisions are set to expire. If it doesn’t there will more than likely be extensions granted for those particular provisions until a bill can be ironed out and voted on. The debate over the Patriot Act is far from being over this year and for many years to come.

The arguments that surround the Patriot act today are that same ones that were heard in 2001 when the Patriot Act was passed in the emotional aftermath of the September 11th terrorist attacks. Some wonder if the Patriot Act is constitutional and so badly needed, as its proponents swear, why sunset provisions included in it at all. If it is truly unconstitutional and destructive, then why is it not abolished? All of the talk about sunsets and reauthorizations merely distracts us from the real issue, which is personal liberty. America was not founded on a promise of security; it was founded on a promise of personal liberty and our pursuit of happiness (The Patriot Act Four Years Later, 2005).

The Patriot Act, like every political issue, boils down to a simple choice of whether we should expand government power, or reduce it. It boils down to being the fundamental political question of our day, but one that is quickly forgotten by politicians who once promised to stand for smaller government. Most governments tend to do what they can get away with rather than what the law allows them to do. All governments try to increase their power over the people they govern, whether we want to admit it or not. The Patriot Act is a great example of this. Constitutions and laws don’t keep government power in check; only a vigilant populace can do that (The Patriot Act Four Years Later, 2005).

The debate over how much power the government should have has been raging for decades. It seems to have really heated up though over the Patriot Act and the use of telecommunications in carrying out this act. One side says that the measures are necessary in order to protect our country from terrorism. While the other side claims that the act contains too many provisions that have nothing to do with fighting terrorism. Who is right and who is wrong is yet to be decided and some wonder if it will ever be decided for sure.

Even the Congress that passed the original act back in 2001 was completely sure about some of the provisions that are included. These are the ones that have sunset rules surrounding them. This allowed for these particular provisions to be debated again four years later in order to make sure that they really need to be included and are truly serving some useful purpose. In 2005 when these provisions were set to expire, Congress passed into a law a new bill that once again postponed the debate over these provisions for another four years. And here we are approaching the deadline of December 31, 2009 and Congress is no closer to making a permanent decision that they were back in 2001. Where it will end no one knows but it will sure be an interesting ride along the way.


Battle over the future of the Patriot Act moves to Senate. (2009). Retrieved November 24, 2009,

from Dolan Media Company Web site:

EFF Analysis Of The Provisions Of The U.S.A. PATRIOT Act. (2003). Retrieved November 23,

2009, from Electronic Frontier Foundation Web site:

H.R.3845. (2009). Retrieved November 24, 2009, from The Library of Congress Web site:

Kerr, Orin S. (2003). Internet Surveillance Law After The U.S.A. Patriot Act: The Brother That

Isn’t. Northwestern University Law Review. 97(2), p607-673.

Patriot Act. (2009). Retrieved November 23, 2009, from Web site:

Patriot Act- Eight Years Later. (n.d.). Retrieved November 24, 2009, from ACLU Web site:

Savage, Charlie. (2009). Battle Looms Over the Patriot Act. Retrieved November 24, 2009, from New York Times Web site:

The USA Patriot Act. (2006). Retrieved November 24, 2009, from PBS Web site:

USA Patriot Act. (n.d.). Retrieved November 24, 2009, from Web site:

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