S. Hrg. 109-341
USA PATRIOT ACT
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HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
USA PATRIOT ACT
APRIL 19, 2005
APRIL 27, 2005
MAY 24, 2005
__________
Printed for the use of the Select Committee on Intelligence
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SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Cong., 2d Sess.]
PAT ROBERTS, Kansas, Chairman
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
ORRIN G. HATCH, Utah CARL LEVIN, Michigan
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
CHRISTOPHER S. BOND, Missouri RON WYDEN, Oregon
TRENT LOTT, Mississippi RICHARD J. DURBIN, Illinois
OLYMPIA J. SNOWE, Maine EVAN BAYH, Indiana
CHUCK HAGEL, Nebraska JOHN EDWARDS, North Carolina
SAXBY CHAMBLISS, Georgia BARBARA A. MIKULSKI, Maryland
JOHN W. WARNER, Virginia
BILL FRIST, Tennessee, Ex Officio
HARRY REID, Nevada, Ex Officio
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Bill Duhnke, Staff Director
Andrew W. Johnson, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
CONTENTS
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Day One
Hearing held in Washington, DC:
April 19, 2005............................................... 1
Statements of :
Roberts, Hon. Pat, a U.S. Senator from the State of Kansas... 1
Prepared statement....................................... 2
Rockefeller, Hon. John D. IV, a U.S. Senator from the State
of West Virginia, prepared statement....................... 29
Nojeim, Gregory T., Associate Director and Chief Legislative
Counsel, ACLU, prepared statement.......................... 29
Dempsey, James X., Executive Director, Center for Democracy &
Technology, prepared statement............................. 45
MacDonald, Heather, Senior Fellow at the Manhattan Institute
for Policy Research, prepared statement.................... 57
Supplemental Materials:
Testimony on the USA PATRIOT Act by Bob Barr................. 4
Letter from Edwin Meese III and Paul Rosenzweig.............. 10
Testimony of Orin S. Kerr.................................... 23
Statement for the Record by Kate Martin...................... 26
Chart on the USA PATRIOT Act................................. 42
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Day Two
Hearing held in Washington, DC:
April 27, 2005............................................... 87
Statements of:
Gonzales, Hon. Alberto R., Attorney General, Department of
Justice.................................................... 97
Prepared statement....................................... 90
Mueller, Hon. Robert S. III, Director, Federal Bureau of
Investigation.............................................. 100
Goss, Hon. Porter J., Director, Central Intelligence Agency.. 104
Prepared statement....................................... 102
Supplemental Materials:
April 4, 2005 Letter from William E. Moschella, Assistant
Attorney General to Senator Arlen Specter.................. 130
April 26, 2005 Letter from William E. Moschella, Assistant
Attorney General to Senator Dianne Feinstein............... 137
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Day Three
Hearing held in Washington, DC:
May 24, 2005................................................. 153
Statements of:
Caproni, Ms. Valerie, General Counsel, Federal Bureau of
Investigation.............................................. 168
Prepared statement....................................... 166
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California, prepared statement............................. 176
Kris, David S., former Associate Deputy Attorney General,
U.S. Department of Justice, prepared statement............. 188
Onek, Joseph, Senior Policy Analyst, Open Society Institute,
prepared statement......................................... 208
Collins, Daniel P., former Associate Deputy Attorney General,
U.S. Department of Justice, prepared statement............. 212
Dempsey, James X., Executive Director, Center for Democracy
and Technology, prepared statement......................... 221
Supplemental Materials:
May 23, 2005 Letter from Richard A. Seamon, University of
Idaho...................................................... 155
THE USA PATRIOT ACT OF 2001
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DAY ONE
TUESDAY, APRIL 19, 2005
United States Senate,
Senate Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 3:05 p.m., in
room SH-216, Hart Senate Office Building, Hon. Pat Roberts
(Chairman of the Committee) presiding.
Committee Members Present: Senators Roberts, Bond, Lott,
Snowe, Chambliss, Warner, Rockefeller, Feinstein, Wyden, and
Corzine.
OPENING STATEMENT OF HON. PAT ROBERTS
Chairman Roberts. The Committee will come to order.
I would like to apologize to our witnesses for the 40-
minute delay due to the procedural votes that we had on the
floor of the Senate. I guess the good news is that, at least
for the time being, we have completed those votes. The
challenge that we face is that at 5 o'clock we will have
additional votes. We're down already to 1 hour and 45 minutes.
Now I have a marvelous opening statement that deals with
the PATRIOT Act and all of the varied concerns and positives
that are involved with that Act and your concerns as well. But,
I am going to simply submit that for the record in an attempt
to hear from you.
Can we keep the applause down a little bit?
[Laughter.]
Chairman Roberts. I think the Vice Chairman is going to do
likewise, although he will seek his own counsel.
We've invited a panel of outside experts to provide their
views of the USA PATRIOT Act and their opinions on those
provisions of the Act which will expire later this year.
Our witnesses are Mr. Gregory T. Nojeim, the Associate
Director and Chief Legislative Counsel for the American Civil
Liberties Union; Mr. Jim Dempsey, Executive Director of the
Center for Democracy and Technology; and Ms. Heather MacDonald,
a John M. Olen fellow at the Manhattan Institute. The Committee
thanks all of our witnesses for being here today.
[The prepared statement of Chairman Roberts follows:]
Prepared Statement of Hon. Pat Roberts
The Committee will come to order.
On September 11, 2001, 19 terrorists hijacked four flights over the
United States. We all remember the events of that day. The images of
the collapse of the World Trade Center, the burning Pentagon, and the
crash site of United Flight 93 in Shanksville, Pennsylvania should
never be forgotten.
But, the story of that day was written well before September 11th,
and it was written by the terrorists that lived and trained within the
United States. They rented apartments, bought cars, made telephone
calls, sent e-mails, surfed the Internet, received wire transfers, and
attended flight schools.
The terrorists hid in the open--their sinister plans and intentions
camouflaged by millions of innocent, lawful transactions that occur
every day in the United States.
The activities of the hijackers went largely unnoticed by our
intelligence and law enforcement agencies. As this Committee and the 9/
11 Commission have pointed out, systemic flaws in our national security
agencies prevented full cooperation that might have stopped these
attacks.
But, in addition to these systemic flaws, our national security
agencies were operating under obsolete authorities. Their hands were
tied by inaccurate interpretations of existing law that restricted
common-sense sharing of intelligence information.
The USA PATRIOT Act was the first legislative effort by Congress
and the President to reform our national security apparatus in response
to the attacks of September 11th. The Act brought intelligence tools
into the information age. Collection authorities that had been enacted
during the era of the rotary phone had not kept pace with the new world
of e-mail, the Internet, and mobile phones. The Act also tore down
``walls'' erected by overly cautious lawyers that had prevented
information sharing and coordination between law enforcement and
intelligence officials.
The USA PATRIOT Act was drafted and passed by overwhelming
majorities in both the Senate and the House and signed by the President
on October 26, 2001. But, to describe the Act as a rash response to a
horrific attack would be a mistake. Many of the provisions in the Act
had been the subject of deliberation for years. The provisions were
enacted with an acute awareness of rights guaranteed by the
Constitution and applicable judicial precedents. The USA PATRIOT Act
reflected a careful balancing of national security and the privacy
rights of U.S. persons.
Nonetheless, some of the more important provisions in the Act were
passed subject to a ``sunset'' provision. Sixteen provisions in the
Act--and the recently enacted ``lone wolf '' amendment to the Foreign
Intelligence Surveillance Act--will expire on December 31, 2005.
The danger posed by terrorism and other national security threats,
however, will not expire on that date.
Today, the Senate Select Committee on Intelligence continues its
on-going oversight of the USA PATRIOT Act. This open hearing will be
the first in a series of three hearings designed to educate Members and
the public as the Senate considers the repeal of the ``sunset''
provision and modifications to other intelligence authorities. On
Thursday, the Committee will hold a closed hearing on operational
matters relating to the Act. Next Wednesday, we will hear from the
Attorney General, Director of the Federal Bureau of Investigation, and
the Director of Central Intelligence.
This is not the Committee's first review of the USA PATRIOT Act or
the Foreign Intelligence Surveillance Act, also known as FISA. The
Committee regularly holds hearings, conducts briefings, and receives
information regarding the activities of the Intelligence Community. The
Committee conducted a closed hearing on the USA PATRIOT Act during the
last Congress. We receive detailed reports from the Department of
Justice every 6 months regarding FISA collection and annual reports on
the use of other surveillance tools.
The Committee is also in the final stages of completing its second
audit of the procedures, practices, and use of FISA. This
comprehensive, classified analysis will represent one of the most
thorough reviews of Executive branch activities under FISA since the
USA PATRIOT Act was enacted.
Today, we have invited a panel of outside experts to provide their
views of the USA PATRIOT Act and their opinions on those provisions of
the Act that will expire later this year.
Our witnesses are: Mr. Gregory T. Nojeim, Associate Director and
Chief Legislative Counsel for the American Civil Liberties Union; Mr.
Jim Dempsey, Executive Director of the Center for Democracy and
Technology; and Ms. Heather Mac Donald, a John M. Olin fellow at the
Manhattan Institute. The Committee thanks all of our witnesses for
being here today.
We have also received testimony and submissions for the record
from: The Honorable Bob Barr, former Congressman from Georgia; Former
Attorney General Edwin Meese III, and Paul Rosenszweig (RO-zen-swayg)
of the Heritage Foundation; Associate Professor Orin S. Kerr of the
George Washington University Law School; and Ms. Kate Martin, Director
of the Center for National Security Studies.
Without objection, the submissions from these commentators will be
entered into the record.
Before I recognize the Vice Chairman, I want to set out some
fundamental principles that will inform my consideration of the USA
PATRIOT Act reauthorization and any other modifications to law or
policy governing intelligence activities.
First, our intelligence agencies need flexible authorities to
confront terrorists, spies, proliferators, and other national security
threats.
Second, as we seek to protect national security, we must also
ensure that civil liberties and privacy are not sacrificed in the
process. This is not a zero-sum game, however. As former Supreme Court
Justice Arthur Goldberg noted, ``While the Constitution protects
against invasions of individual rights, it is not a suicide pact.''
Third, these are not matters of ``first impression.'' Interpreting
the Constitution and the President's responsibility to protect national
security, Federal courts have wrestled with many of these issues
before. They have recognized the authority of the President to conduct
warrantless electronic surveillance of foreign powers and their agents.
Well-established judicial precedents also make clear that certain
records--even of the most private information--lose their
Constitutional protection when voluntarily exposed publicly or to a
business or other third party.
Finally, I will support reasonable modifications to USA PATRIOT Act
provisions or other authorities that clarify legal uncertainties, but I
will oppose modifications that place unnecessary hurdles in the path of
lawful intelligence investigations.
I would like to note one particular example of an authority that
has been questioned by some in the context of the USA PATRIOT Act.
Everyday, we expose our personal information to businesses--when we
buy milk from the grocery store with a credit card; when we open an e-
mail account over the Internet; when we apply for a mortgage. This
information we have voluntarily exposed to others is no longer private.
Federal courts have clearly established that this record trail is not
``protected'' by the warrant requirement of the Fourth Amendment.
I have said before, that the 9/11 hijackers conducted numerous
transactions while living within the United States. It should not be
surprising that the records of these transactions would have been
useful to the Intelligence Community before the attacks. Records from
flight schools, cell phone companies, rental car dealers, or internet
service providers might have revealed crucial information about the
activities of these terrorists.
To gain access to these types of transactional records, the FBI
uses a FISA ``business records'' order. A FISA ``business records''
order allows the FBI to access records for investigations of
international terrorists and spies.
Before the USA PATRIOT Act, the authority to access ``business
records'' under FISA was limited to certain types of business--like
storage facilities, rental car companies, airlines, hotels, and the
like. Section 215 of the USA PATRIOT Act expanded the types of entities
that were subject to a FISA ``business records'' order and the types of
items that could be sought with such an order.
Armed with a FISA ``business records'' order, the FBI can now go to
a flight school to ask for records about a student they believe to be a
terrorist. They can ask an internet service provider for the subscriber
information of a possible spy. They can ask for transactional records
from a fertilizer company, a chemical company, and a car dealership if
those records will support an investigation to stop a car bomb attack
by al Qaeda.
Libraries, booksellers, and others have raised great concern about
this provision.
In law enforcement investigations, the government can obtain the
same types of records--from all types of businesses, including
libraries and bookstores--with a grand jury subpoena. These subpoenas
are issued without a court order and are subject to judicial review
only after they are issued.
A FISA ``business records'' order--on the other hand--can be issued
only upon the approval of a Federal Judge serving on the Foreign
Intelligence Surveillance Court. The judge can direct the FBI to modify
the scope of the order. No similar pre-issuance review exists in the
context of grand jury subpoenas.
Still, there is concern that the provision infringes privacy
interests.
A FISA ``business records'' order also CANNOT be sought if the
investigation is based solely on activities protected by the First
Amendment. This prohibition dovetails with existing restrictions in
Executive Order 12333 on the collection of foreign intelligence
concerning the domestic activities of U.S. persons.
Finally, I note that the FISA ``business records'' provision is a
relatively non-intrusive means of collecting intelligence for a
national security investigation. Analysis of these business records can
help solidify investigative leads or clear innocent names before more
intrusive FISA techniques such as electronic surveillance or physical
search are ever employed.
And, there are limitations in the USA PATRIOT Act, along with
requirements for judicial review, the Congressional reporting
obligations, and the prohibitions in Executive Order 12333.
While I recognize that some clarifying modifications to Section 215
may be necessary, I will oppose modifications that increase the
standard for an order above ``relevance'' or place unreasonable
barriers between these business records and intelligence officials.
Section 215 is just one example of the numerous tools that the USA
PATRIOT Act provided to the men and women protecting us from further
attack. These tools are currently helping our intelligence agencies
identify terrorists, track their movements, and disrupt their plots.
The provisions are subject to review by courts and the oversight of
Congress.
Those provisions of the USA PATRIOT Act subject to expiration at
the end of the year must be reauthorized. The alternative is a return
to failed, outdated, and illogical limits on national security
investigations that tied our hands prior to the 9/11 attacks. The
dangers are real, and we should give our people every Constitutional
tool available to fight and defeat terrorism.
I now recognize the Vice Chairman for any remarks he might wish to
make.
Chairman Roberts. We also received testimony and
submissions for the record from the Honorable Bob Barr, the
former Congressman from Georgia; former Attorney General Ed
Meese and Paul Rosenzweig of the Heritage Foundation; Associate
Professor Orin S. Kerr of the George Washington University Law
School; and Ms. Kate Martin, the Director of the Center for
National Security Studies.
Without objection, the submissions from these commentators
will be entered into the record.
[The prepared statements referred to follow:]
Prepared Statement of Bob Barr
Chairman Roberts, Ranking Member Rockefeller, distinguished members
of the Select Committee, I thank you for the invitation to present my
views in this written statement on the debate over the PATRIOT Act
``sunset'' provisions, and I applaud your oversight on this crucial
matter.
My name is Bob Barr. From 1995 to 2003, I had the honor to
represent Georgia's Seventh District in the U.S. House of
Representatives, serving that entire period on the House Judiciary
Committee. From 1986 to 1990, I served as the United States Attorney
for the Northern District of Georgia after being nominated by President
Ronald Reagan, and was thereafter the president of the Southeastern
Legal Foundation. For much of the 1970's, I was an official with the
CIA.
I currently serve as CEO and President of Liberty Strategies, LLC,
and Of Counsel with the Law Offices of Edwin Marger. I also hold the
21st Century Liberties Chair for Freedom and Privacy at the American
Conservative Union, consult on privacy issues with the American Civil
Liberties Union, and am a board member of the National Rifle
Association.
Finally, I am the Chairman of a new network of primarily
conservative organizations called Patriots to Restore Checks and
Balances, which includes the American Conservative Union, Eagle Forum,
Americans for Tax Reform, the American Civil Liberties Union, Gun
Owners of America, the Second Amendment Foundation, the Libertarian
Party, the Association of American Physicians and Surgeons, and the
Free Congress Foundation.
We strongly urge Congress to resist calls to summarily remove the
sunset provisions in the PATRIOT Act. This reflects our philosophy in
support of all necessary and constitutional powers with which to fight
acts of terrorism, but against the centralization of undue authority in
any one aim or agency of government.
As I have said many times before, I believe the current struggle to
properly integrate our shared constitutional heritage into our efforts
to provide for the common defense, is the defining debate of our time.
If we fail to strike the appropriate balance, we will do irreparable
harm to our most elemental principles as a nation.
To that end, I urge this Committee to carefully examine the current
language of the 2001 USA PATRIOT Act, and to make modest modifications
to a handful of its provisions. In particular, I strongly urge
individual members to co-sponsor Senator Larry Craig's Security and
Freedom Enhancement Act of 2005, known as the SAFE Act. Although in
many respects, this legislation does not address all of our concerns
with the USA PATRIOT Act, it is an essential first step.
Even though I voted for the USA PATRIOT Act in October 2001, as did
many of my colleagues, I did so with the understanding it was an
extraordinary measure for an extraordinary threat; that it would be
used exclusively, or at least primarily, in the context of important
antiterrorism cases; and that the Department of Justice would be
cautious in its implementation and forthcoming in providing information
on its use to the Congress and the American people.
I have become skeptical on all of these fronts.
First, the Justice Department has been quite frank in its use and
desire to use the USA PATRIOT Act in non-terrorism contexts. Second,
the administration has repeatedly stated its intention to expand the
USA PATRIOT Act, and has floated various pieces of legislation that
would do so.
And, third, although this Committee would be in the best position
to judge, the Justice Department has not produced any compelling
evidence that the USA PATRIOT Act has been essential in preventing al
Qaeda-style terrorist plots. Although I grant we have not suffered
another major terrorist attack since 9/11, as Homeland Security
Secretary Michael Chertoff put it, ``[i]t's like sprinkling powder to
keep away elephants. If no elephants show up, how do you prove it's
because of the powder, rather than because there were never any
elephants?'' \1\
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\1\ Stephen Brill, After: How America Confronted the September 12
Era 348 (2003).
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Before I specifically discuss those provisions of the USA PATRIOT
Act most pertinent to this Committee's jurisdiction, I would like to
bring two new developments in the ``sunsets'' debate to the Committee's
attention. Namely, we learned earlier this month that both the USA
PATRIOT Act appears to have been used in the Brandon Mayfield affair,
and that the Administration is increasingly turning to it for its
surveillance needs.
The Mayfield revelation is particularly disturbing. Mayfield--the
Oregon lawyer turned prime suspect in the Madrid bombing investigation
because of faulty fingerprint analysis at the FBI--was subjected to a
highly intrusive Federal investigation and then detained as a
``material witness'' for 2 weeks before finally being exonerated.
According to Attorney General Gonzales, the FBI used the USA
PATRIOT Act when it executed a covert search of Mayfield's home.
Specifically, the attorney general said that Section 207 was used to
extend the duration of Mayfield's surveillance, and that ``in some
sense'' Section 218, which made it easier to use intelligence
authorities in criminal contexts, was used.
We all fully understand the FBI is not perfect and generally
support the bureau even when it makes honest mistakes.
However, the Mayfield case shows how the USA PATRIOT Act, by
lessening meaningful judicial oversight, reduces the ability of the FBI
and Justice Department to avoid such mistakes. In particular, it shows
how--through the increased use of classified and less exacting foreign
intelligence surveillance authority in place of traditional criminal
warrants based on probable cause and executed in the open--the USA
PATRIOT Act can compound mistakes and amplify them into serious
deprivations of an innocent person's personal liberty.
In Mayfield's case, not only was a U.S. citizen detained, but his
home was subjected to a ``black bag'' intelligence search even though
the Justice Departillent was arguably conducting this search primarily
for criminal purposes; in other words, in order to apprehend a suspect
in a terrorist bombing that had already taken place. Such a foreign
intelligence search is even more intrusive than the criminal ``sneak
and peek'' search warrants available under section 213 of the USA
PATRIOT Act, because notice is not simply delayed, it is never
provided. The Washington Post reported that in a March 24th letter to
Mayfield, the Justice Department acknowledged that during a covert
search of his home, agents copied computer and paper files, took 355
digital photographs, seized six cigarette butts for DNA analysis, and
used cotton swabs to obtain other DNA evidence.
In short, the Mayfield case should serve as a cautionary tale of
how the USA PATRIOT Act can seriously exacerbate any ``broken
telephone'' effect in an ongoing investigation.
I would also say, especially to Senators Hatch and Feinstein, that
this is the type of problem that supporters of increased checks and
balances refer to when discussing so-called ``PATRIOT Act abuses.'' No
one is of the mind that the FBI would deliberately seek to infringe on
the rights of loyal, law-abiding Americans. But there need be no malice
aforethought for something to constitute an ``abuse.'' The fact is,
procedural deficiencies in the law's implementation likely led to
Mayfield's predicament, and Mayfield was an innocent man.
Put another way, sometimes the road to abuse is paved with good
intentions. Take, for instance, the Racketeer Influenced and Corrupt
Organizations, or RICO, Act, which was passed to provide tools to fight
organized crime, but was then used against pro-life groups. Overbroad
laws are necessarily subject to overbroad application, if not now, then
under future administrations, including those with less regard for
civil liberties. That in itself can be deemed ``abusive.''
The second consideration--that the USA PATRIOT Act is becoming an
ever more popular tool for the Justice Department--should be of
particular concern to limited government conservatives like myself. As
with taxes, unduly expanded government authority is next to impossible
to retract.
As an illustration, I would point the Committee to the Attorney
General's statement that, to date, Section 215 of the USA PATRIOT Act
has been used 35 times. Note, however, that former Attorney General
John Ashcroft declassified a memorandum to FBI Director Robert Mueller
in September 2003 saying that Section 215 had never been used, meaning
that those 35 court orders have all been issued in just the last year-
and-a-half.
Granted, three dozen court orders may be considered by some to be a
drop in the ocean of foreign intelligence document-production orders.
Clearly, however, the trend is toward increased, not decreased, use of
the USA PATRIOT Act; and, given the reach of the statute, the increased
enthusiasm for its use ought to sound alarms.
Similarly, on the eve of the recent, April 6th Senate Judiciary
Committee hearing, the Justice Department released statistics
disclosing the use to date of Section 213 of the PATRIOT Act--the so-
called ``sneak and peek'' provision that grants statutory authorization
for the indefinite delay of criminal search warrant notification.
Apparently, the department sought and received the authority to
delay notice 108 times between April 2003 and January 2005, a period of
approximately 22 months. By contrast, it sought and received this
authority 47 times between November 2001, when the PATRIOT Act was
enacted, and April 2003, a period of about 17 months. The 5-month
difference in timeframe aside, these numbers clearly reveal a
substantial increase in use.
Moreover, Senator Arlen Specter at the April 6th Judiciary
Committee hearing also revealed that 92--or approximately 60 percent--
of those 155 requests were granted under the broad justification that
notice would have the result of ``seriously jeopardizing an
investigation,'' rather than under the more specific criteria that
notice would endanger a person's life, imperil evidence, induce flight
from prosecution or lead to witness tampering.
While I understand the jurisdiction of this Committee is concerned
primarily with foreign intelligence authorities, not with criminal
``sneak and peek'' warrants, I respectfully submit that you should be
concerned when criminal investigative powers are made so broad that
they come to resemble powers associated with foreign intelligence
investigations. As Attorney General Gonzales informed Representative
Flake at an April 7th hearing of the House Judiciary Committee, six
criminal delayed-
notice warrants under section 213 of the PATRIOT Act were approved with
an indefinite delay (just as we had feared), and one had a delay that
lasted fully half a year.
Lengthy, secret surveillance, including secret ``black bag'' jobs
(all undertaken, since 1978, with the proper approval of the Foreign
Intelligence Surveillance Court, of course) have long been the hallmark
of a specialized, but crucial, type of investigation--the foreign
intelligence investigation of suspected spies and international
terrorists--the members of this Committee understand better than
anyone. When these intrusive powers, such as the power to enter a home
without notifying the owner, become more common in criminal or other
types of investigations, the American people become alarmed. The
resulting furor risks more draconian limits on all such secret
surveillance powers--even in the investigations where they may actually
be needed.
Although I acknowledge the Justice Departtnent's argument that
Section 213 and 215 searches and surveillance represent only a fraction
of the searches and surveillance conducted by the FBI and other
security agencies, I remain concerned. These are extraordinary
authorities and they are being used more frequently, and more and more
outside their proper context of foreign intelligence and terrorism
investigations. Any hint of such a trend should be very worrisome.
Furthermore, I would point the committee's attention to an April 1,
2005 Associated Press story on a recent report to Congress by the
Assistant Attorney General for Legislative Affairs, William E.
Moschella, disclosing the record number of Foreign Intelligence
Surveillance Act, or FISA, wiretaps in 2004. The department requested
and won approval of 1,754 FISA wiretaps in 2004, up from 1,724 in 2003.
Although the marginal increase between 2003 and 2004 is small, the
numbers still represent a 70 percent jump over the number obtained in
2000. In 2003, moreover, the use of intelligence wiretaps outstripped
that of normal criminal wiretaps for the first time in history. One can
only presume that the same trend continued in 2004.
The USA PATRIOT Act is directly relevant to the increased use of
these intelligence wiretaps, as a number of provisions in the law made
these wiretaps more intrusive and much easier to obtain outside of
terrorism or espionage investigations. Section 218, for instance, which
is set to sunset this year, now requires the investigation of foreign
intelligence or terrorism to be a ``significant purpose,'' rather than
the primary purpose, of the intelligence wiretap.
Bearing these two new developments--the Mayfield revelations and
the increased use of the PATRIOT Act--in mind, I urge the Intelligence
Committee to look at three provisions that are of particular importance
to your oversight mandate.
These are Sections 206, 215 and 505, which, respectively, created
``roving wiretap'' authority under FISA, expanded the government's
ability to seize personal records and other materials under foreign
intelligence authorities, and finally removed the required ``nexus'' to
foreign powers for the specific targets of FBI ``National Security
letter'' subpoenas.
First, when Congress created foreign intelligence roving wiretap
authority in the USA PATRIOT Act, it failed to include the checks
against abuse present in the analogous criminal statute. This is
troubling because, as roving wiretaps attach to the target of the
surveillance and not to the individual communications device, they
provide a far more extensive and intrusive record of a person's
communications.
Accordingly, criminal roving wiretaps require agents to
``ascertain'' that the target, rather than a third-party, is in fact
using the telephone before they begin recording. They also require
that, if the FBI does not actually know the identity (or an alias) of
the target, but knows that he or she will be using a particular phone,
the wiretap can attach to a single phone and all its users.
In creating roving wiretap authority under FISA, the USA PATRIOT
Act did away with this ascertainment requirement. Then, shortly
thereafter, the intelligence authorization bill for FY 2002 took away
the requirement that the applicant specify either the identity of the
target or the particular communications device.
The result, today, is a ``John Doe'' general warrant, issued
secretly under FISA, that permits electronic surveillance irrespective
of the communications device being tapped or the person being
eavesdropped on.
The Justice Department has defended the open-ended nature of these
``John Doe'' wiretaps, by pointing to the requirement that they provide
the FISA court with a physical description of the target if it cannot
identify the communications device or target. Critics question how much
of a safeguard this description requirement is in practice, given the
paucity of identifying information it requires. In recognition of the
oversight authority and security clearance of this Committee, I would
urge its members to inquire on this point at length.
In addition, I would urge the Committee to tighten the roving
wiretap authority to prevent anonymous or dragnet wiretapping, and to
use the internal safeguards in the criminal roving wiretap statute as a
model. At the very least, a judge authorizing a roving wiretap should
have some assurance that (a) an innocent bystander's sensitive
communications are protected, and (b) the court order is not an
effective general warrant to be filled in later.
To that end, Senator Craig's SAFE Act would restore the
ascertainment requirement and mandate that an FBI applicant for a
national security roving wiretap specify either the actual target (or
an alias) or the communications device to be tapped. This would, I
believe, reserve for the government power that is more than
sufficiently flexible to meet the demands of modern anti-terrorism and
other anti-criminal investigations, over and above that of pre-PATRIOT
Act authorities.
Next, I would urge the committee to carefully review the use and
utility of Section 215, the USA PATRIOT Act's amendment to what was
special authority under FISA to seize rental car, self-storage and
airline records for national security investigations.
Prior to the USA PATRIOT Act, the underlying statute applied to
only a limited subset of businesses, and it required a showing of
``specific and articulable facts'' that the target was an agent of a
foreign power. The 2001 Act removed both these limitations, thereby
greatly expanding the power of the government to reach to all
``tangible things'' (including books, records, papers, documents and
other items), and lowering the evidentiary standard below that of
standard, grand jury subpoenas which are pegged to at least some
showing of relevance to criminal action by a particular person in an
ongoing international terrorism or foreign intelligence investigation.
Some have questioned why the section 215 power has become known as
the ``library provision,'' when libraries were not mentioned and given
that it covers so much beyond library records or other information
maintained by libraries. The answer is simple. Prior to the USA PATRIOT
Act, library and bookseller records were not covered by this power,
which then only permitted an order for the records of certain business.
Now, library records are covered--as are all other records and tangible
items, including membership lists of political organizations, gun
purchase records, medical records, genetic information, and the list
goes on.
Section 215 also comes with a sweeping gag order, without any
explicit provision for a recipient to even consult with counsel; and if
certification is made that the records are sought for any intelligence
or terrorism inquiry, the judge has no power under the law to challenge
that certification. Finally, and crucially, this is not like a grand
jury subpoena, because a recipient has no explicit right to move to
have it quashed in court, and failure to comply with a 215 order is
presumably a serious offense.
Accordingly, critics of this section rightly charge that its open-
ended scope and lack of meaningful judicial review open the door to
abuses, and I agree. At the very least, Congress must restore the
particularity requirement for the target of a Section 215 order, and
should institute additional reporting requirements (subject, of course,
to appropriate classification measures). Here again, such a modest
limitation, consistent with traditional Fourth Amendment principles,
would pose no significant hardship to Federal agents. Federal judges
would, as they have for ages past, continue to approve virtually all
such applications properly supported and applied for by government
agents.
The SAFE Act, among other new procedural safeguards, would restore
the specific and articulable facts standard and provide a recipient
with at least some outlet to challenge an unreasonable order. It would
also require notice before any information seized pursuant to Section
215 of the USA PATRIOT Act is introduced as evidence in any subsequent
proceeding. These are ``burdens'' the government has always been able
to meet and which have never been seen as any real impediment to the
government's ability to secure necessary evidence.
I welcome the Attorney General's recent statements, agreeing to
some changes to Section 215 that would make explicit a recipient's
right to challenge the order and the secrecy provision, and would make
explicit a recipient's right to consult an attorney. The Attorney
General is certainly right to agree to changes in this poorly drafted
provision, but, unfortunately, it remains unclear that the
Administration will agree to a standard for a Section 215 order
(individual suspicion) that will truly protect privacy. I strongly urge
you to adopt the SAFE Act's standard in this regard.
Finally, I would urge the Committee to review Section 505 of the
USA PATRIOT Act, which removed the requirement that the FBI self-
certify that it has ``specific and articulable facts'' that the
individual target of an administrative subpoena or ``national security
letter'' (NSL), is an agent of a foreign power.
Prior to the USA PATRIOT Act, the FBI could use NSLs, which serve
as non-judicial subpoenas issued at the sole discretion of the FBI, to
demand business, Internet, credit and telephony records, among other
things. Before doing so, agents had to at least certify internally that
the NSL pertained to a particular individual, who was acting on behalf
of a foreign power.
The USA PATRIOT Act effectively allows the FBI to issue NSLs for
certain financial, transactional, electronic communications and credit
records without any individualized suspicion. It changed the standard
again to relevance to any investigation. The SAFE Act treats NSLs much
like it does Section 215 orders--it maintains the expansive scope of
the law, but includes the appropriate, minimal standard of individual
suspicion; provides an explicit right to challenge the order; and
retains the secrecy requirement, all of which take into account the
sensitivity of national security investigations without taking away any
necessary government powers.
In short, the SAFE Act simply modifies the powers expanded by the
USA PATRIOT Act, by making the government's exercise thereof subject to
the basic Fourth Amendment notion that before the government
``pierces'' an individual's right to privacy of information that can be
used as evidence against them, it must have a reasonable suspicion that
the person has either violated the law or is serving as an agent of a
foreign power. The government has not shown any reason why it cannot
meet such a nominal burden, and the Fourth Amendment requires it do so.
I believe, especially given that NSLs currently have no judge in
the picture at all, that the SAFE Act's approach is entirely
appropriate.
The committee should also note that Section 505(a) of the USA
PATRIOT Act has been at the center of an ongoing bit of confusion about
a 2004 court decision dealing with NSLs and whether that court decision
involved the 2001 Act or some other law. If I may, I would like to take
this opportunity to make sure the record is accurate.
In September 2004, Judge Victor Marrero of the United States
District Court for the Southern District of New York issued a 50-page
ruling in the case of Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y.
2004). In it, he struck down 18 U.S.C. Sec. 2709, the statute
permitting the issuance of NSLs for customer records from Internet,
telephone and other electronic service providers.
The judge struck the provision in its entirety, including the
amendments made by Section 505(a) of the PATRIOT Act. Accordingly, the
judge's decision struck down all of Section 505(a) of the PATRIOT Act,
but also struck down the rest of the NSL statute with it.\2\
---------------------------------------------------------------------------
\2\ Judge Marrero's decision did not affect the rest of Section
505, which amended a number of different statutes that permit the FBI
to issue NSLs for the production of other kinds of records.
---------------------------------------------------------------------------
The judge ruled on two primary grounds--that the Section 2709 NSL
is unreviewable, and that the attached gag order forever barred a
recipient from telling anyone anything about the NSL. As the judge
noted repeatedly in his opinion, the USA PATRIOT Act did remove the
requirement of individual suspicion from the statute. For instance, he
rests a large part of his First Amendment findings on the FBI's post-
PATRIOT Act ability to suppress anonymous speech using an NSL.
Judge Marrero proffers two hypotheticals on that score, neither of
which would have been possible prior to the USA PATRIOT Act unless the
FBI had specific facts that the individual target was an agent of a
foreign power. The FBI could use an NSL, the judge notes, to disclose
the identity of an anonymous ``blogger'' critical of the government, or
to discover the identity of everyone who has an e-mail account through
a political campaign.
A number of lawmakers and other interested parties continue to
claim, however, that Doe v. Ashcroft did not strike down a provision of
the USA PATRIOT Act because Section 2709, prior to the Act, did not
contain a right to challenge and contained a gag order. This is simply
not true. First, whenever a statute is struck down in its entirety any
then-operative amendments are also rendered unconstitutional. It is
hard to see how a decision that strikes down every word of one section
of a law can be said not to ``involve'' that law. Second, the USA
PATRIOT Act is the 800-pound gorilla in the Marrero opinion, and
clearly factored into his reasoning.
In sum, then, I urge the Committee to take into account the recent
developments in the USA PATRIOT Act debate, most notably the Mayfield
revelations and the indications that the Justice Department is turning
to the PATRIOT Act more and more.
I also respectfully ask that the Committee look closely at the
three most contentious PATRIOT Act amendments to foreign intelligence
law--Sections 206, 215 and 505--and urge individual members to co-
sponsor S. 737, the Security and Freedom Enhancement Act of 2005, which
already enjoys bipartisan support.
As evidenced by the circumstances surrounding the founding of this
very Committee, foreign intelligence law, especially as it applies
domestically, poses serious risks to basic constitutional freedoms.
While some hail the provisions in the USA PATRIOT Act as breaking down
an artificial ``wall'' or a ``technicality'' between the gathering and
use of evidence in criminal cases--matters necessarily subject to the
Bill of Rights--and the gathering of foreign intelligence--
appropriately not subject in its gathering to the limitations in the
Bill of Rights--the fact is the artificial ``wall'' that applied
different standards to the gathering and use of each category of
information, is neither artificial nor a technicality: it is the
Constitution of the United States of America. In treating them as one
and the same in the name of fighting ``terrorism'' or any other threat
posed to the good order and safety of our society, we show disdain for
the fundamental underpinning of our constitutional form of government
and the freedoms it enshrines.
Doing otherwise will result in an historical pattern where such
laws are made ever more secret, ever more unchecked and ever more
susceptible to abuse; and each subsequent national ``crisis'' forces
the shades drawn tighter. It is a slippery slope, down which this
Committee, this year in consideration of whether to sunset certain
provisions in the USA PATRIOT Act and in deciding whether to place very
modest and limited--but fundamentally important--restraints on some of
the law's provisions, can help avoid.
Thank you again for this opportunity to comment on the vitally
important deliberations of this Committee. I remain available to
provide whatever further information the Committee might request.
The Heritage Foundation,
Washington, DC, April 18, 2005.
Hon. Pat Roberts, Chairman,
Senate Select Committee on Intelligence,
Senate Hart Office Bldg.,
Washington, DC.
Hon. John D. Rockefeller IV, Vice Chairman,
Senate Select Committee on on Intelligence,
Senate Hart Office Bldg.,
Washington, DC.
Dear Chairman Roberts and Vice Chairman Rockefeller: We understand
that the Senate Select Committee on Intelligence will be conducting an
oversight hearing on April 19th concerning the reauthorization of
certain provisions of the Patriot Act. We write to provide you with our
views concerning that question.
In general, our view is that too much of the debate has focused on
the Act not as it truly is but as people perceive it to be. Most of the
proposals for reform mistake the appearance of potential problems and
abuse (the myth) with the reality of no abuse at all. To take but one
example, the Inspector General for the Department of Justice has
consistently reported that there have been no instances in which the
Patriot Act has been invoked to infringe on civil rights or civil
liberties. See Report to Congress on Implementation of Section 1001 of
the USA Patriot Act (March 2005); see also ``Report Finds No Abuses of
Patriot Act,'' Wa. Post at A2 (Jan. 28, 2004).
Thus, while we acknowledge that any expansion of governmental power
comes with the potential for abuse, that potential does not, in our
judgment warrant hesitancy absent some evidence of real abuse. In
short, the case for change has not been made.
The Heritage Foundation has conducted extensive research on the
Patriot Act that provides greater detail on this subject. All of our
research is summarized
in a memorandum we published entitled ``The Patriot Act and Related
Provisions: The Heritage Foundation's Research'' (http://
www.heritage.org/Research/HomelandDefense/wm612.cfm).
Most saliently for the Committee's consideration we would
respectfully call your attention to two separate publications that
contain much of our substantive analysis (copies of which we enclose
with this letter):
Rosenzweig, Carafano & Kochems, eds. ``The Patriot Act
Reader,'' (also available at http://www.heritage.org/Research/
HomelandDefense/The-Patriot-Act-Reader.
cfm)
Meese & Rosenzweig, ``The SAFE Act Will Not Make Us
Safer,'' (also avail-
able at http://www.heritage.org/Research/HomelandDefense/lm10.cfm)
We would ask that you make this letter and our publications a part
of the record of the Committee's hearing. We thank you for the
opportunity to share with you our views.
Sincerely yours,
Edwin Meese III,
Ronald Reagan Distinguished Fellow.
Paul Rosenzweig,
Senior Legal Research Fellow.
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Prepared Statement of Orin S. Kerr
Mr Chairman, Members of the Committee:
My name is Orin Kerr, and I am an Associate Professor at George
Washington University Law School. It is my pleasure to submit this
written testimony concerning the USA Patriot Act. My testimony will
contain three parts: first, a brief explanation of my view that the
public debate over the Patriot Act largely has misunderstood the Act;
second, an overview of the legal issues raised by foreign intelligence
surveillance; and third, an analysis of the constitutional issues
raised by orders to compel information such as library records,
bookstore records, and Internet communications.
I. THE DEBATE OVER THE USA PATRIOT ACT
The public debate over the USA Patriot Act has been based on a
number of major misunderstandings about the scope and effect of the
law. Millions of Americans believe that the Patriot Act profoundly
reshaped the balance between privacy and security in a post-9/11 world.
That is simply wrong. The truth is that the law is much more modest:
Most of the Patriot Act consists of minor adjustments to a set of
preexisting laws, such as the Foreign Intelligence Surveillance Act and
the Electronic Communications Privacy Act. The Patriot Act left the
basic framework of preexisting law intact, offering mostly minor
changes to the set of statutory privacy laws Congress first enacted in
the 1970's and 1980's. I explained this in greater depth in a law
review article published in January 2003, and stand by that view today.
See Orin S. Kerr, Internet Surveillance Law After the USA Patriot Act:
The Big Brother That Isn't, 97 Northwestern University Law Review 607
(2003), available at http://papers.ssrn.com/sol3/papers.cfm?abstract--
id=317501.
Fortunately, the gap between the perception and the reality of the
Patriot Act is beginning to narrow. In recent months, critics of the
Patriot Act have come to acknowledge that most of the Act is consensus
legislation that does not raise civil liberties concerns. For example,
in an April 5, 2005 press release the American Civil Liberties Union
acknowledged that:
Most of the voluminous Patriot Act is actually unobjectionable
from a civil liberties point of view and . . . the law makes
important changes that give law enforcement agents the tools
they need to protect against terrorist attacks. A few
provisions . . . must be revised. . . .
See Bipartisan Legislation Would Fix Worst Parts of Patriot Act
While Maintaining Key Law Enforcement Powers, available at http://
www.aclu.org/SafeandFree/SafeandFree.cfm? ID=17935&c=206.
Although it is unfortunate that this acknowledgment appeared as
late as it did, the ACLU's recognition that the Patriot Act debate is
actually quite narrow is an important step to understanding Patriot Act
reform. It reveals that the differences among pre-Patriot Act law, the
law under the Patriot Act, and proposals to reform the Patriot Act tend
to be relatively small. Of course, any legislative proposals that
impact government power to conduct criminal or intelligence
surveillance must be treated with the greatest consideration and care.
Finding the right balance that both gives the government the power it
needs to investigate terrorist threats and preserves our precious civil
liberties is a very difficult task. At the same time, the effect of the
Patriot Act and the scope of proposed amendments to it are much
narrower than press accounts would lead one to believe.
II. OVERVIEW OF THE ISSUES RAISED BY THE USA PATRIOT ACT AND FOREIGN
INTELLIGENCE SURVEILLANCE
I will now turn to an overview of the issues raised by the law of
intelligence surveillance to help put the debate in better perspective.
At the most basic level, any modern legal regime that allows the
government to investigate crime or terrorism must address a number of
basic methods for acquiring information. In particular, the law must
cover three basic types of authorities:
(1) Authority to conduct physical searches to retrieve physical
evidence or collect information.
(2) Authority to compel third parties to produce physical evidence
or disclose information.
(3) Authority to conduct real-time monitoring over communications
networks.
In the case of criminal investigations, the legal regime that
covers these authorities is well- established. The first authority is
governed by the traditional Fourth Amendment warrant requirement. The
police must have a search warrant based on probable cause to enter a
home or business unless a person with apparent or actual authority over
the place consents, exigent circumstances exist, or another exception
to the warrant requirement applies. The second authority is governed by
the Fourth Amendment rules governing subpoenas. Although many different
types of subpoenas exist, and the rules can vary slightly depending on
the type of subpoena, the general rule is that the police can compel
third parties to disclose information in their possession using a
subpoena. A subpoena can be issued under a wide range of circumstances:
the information need only be relevant to the government's
investigation, and compliance with the subpoena cannot be overly
burdensome to the subpoena recipient. Finally, the third authority is
regulated primarily by statutory law. Two different laws apply: the
interception of contents such as phone calls and
e-mails is regulated by the Wiretap Act, 18 U.S.C. Sec. Sec. 2510-22,
and the collection of non-content information such as phone numbers
dialed and e-mail addresses is governed by the Pen Register statute, 18
U.S.C. Sec. Sec. 3121-27. The former requires the law enforcement to
obtain a ``super warrant'' based on probable cause unless an exception
applies, while the latter permits law enforcement monitoring of non-
content information under a relevance court order something like a
subpoena.
The law governing monitoring for intelligence purposes is somewhat
different than the law governing evidence collection for criminal
cases. The Fourth Amendment's requirements are much less clear--and
generally less strong--than in the routine criminal context. As a
general matter, the few courts that have confronted how the Fourth
Amendment applies to intelligence collection have held that the rules
are somewhat similar to the rules for criminal investigations but also
more flexible. When the Fourth Amendment applies, information and
evidence collection must be reasonable in light of the countervailing
demands and interest of intelligence collection. See United States v.
United States District Court, 407 U.S. 297, 323-24 (1972); In re Sealed
Case, 310 F.3d 717, 745-46 (Foreign Int. Surv. Ct. Rev. 2002). This
legal framework appears to place Congress in the primary role of
generating the law governing intelligence collection, with the Fourth
Amendment serving as a backstop that reviews Congress's approach to
ensure that it is constitutionally reasonable.
Congress has responded to the challenge by passing the Foreign
Intelligence Surveillance Act, also known as ``FISA.'' FISA attempts to
create a statutory regime for intelligence monitoring that largely
parallels analogous rules for gathering evidence in criminal cases.
FISA covers the three basic authorities as follows: First, 18 U.S.C.
Sec. Sec. 1821-29 covers the authority to conduct physical searches, a
parallel to the provision of the Federal Rules of Criminal Procedure
that allows investigators to obtain a search warrant in criminal cases.
Second, 18 U.S.C. Sec. Sec. 1861-62 and 18 U.S.C. Sec. 2709 covers
authority to compel third-parties to disclose records and physical
evidence, a parallel to the provision of the Federal Rules of Criminal
Procedure that allows the issuance of subpoenas in criminal
investigations. Third, 18 U.S.C. Sec. Sec. 1801-22 and 18 U.S.C.
Sec. Sec. 1841-45 cover the authority to conduct real-time monitoring
over communications networks. Specifically, Sec. Sec. 1801-22 cover the
authority to obtain the contents of communications, a parallel to the
Wiretap Act used in criminal cases, and Sec. Sec. 1841-45 cover the
authority to obtain non-content information, a parallel to the Pen
Register Statute used in crime investigations.
The debates over the FISA-related provisions of the Patriot Act
focus primarily on the second type of authority: powers to compel third
parties to produce physical evidence or disclose information.
Specifically, critics object to the weak privacy regulations found in
provisions such as Section 215 of the Patriot Act that address the
government's power to compel third parties to produce physical evidence
or disclose information in intelligence cases. For the most part, these
weak privacy regulations match the standards applied in the analogous
criminal context. For example, the Supreme Court has held that a grand
jury subpoena can be issued if the order to compel seeks information
that may be relevant to a criminal investigation. See United States v.
R. Enterprises, Inc., 498 U.S. 292 (1991). This authority ``paints with
a broad brush'' by design, permitting subpoenas to be issued ordering
third parties to disclose physical evidence and information ``merely on
suspicion that the law is being violated, or even just because . . .
assurance [is sought] that it is not.'' Id. at 297 (quoting United
States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950)). The Supreme
Court has justified this low standard on the ground that orders to
compel evidence from third parties are preliminary investigative tools
designed to determine if more invasive forms of surveillance are
necessary. ``[T]he Government cannot be required to justify the
issuance of a grand jury subpoena by presenting evidence sufficient to
establish probable cause because the very purpose of requesting the
information is to ascertain whether probable cause exists.'' See R.
Enterprises, Inc., 498 U.S. at 297.
The key question that the Committee must consider is whether a
higher standard is appropriate for orders to compel in the context of
intelligence investigations. The environment of intelligence
investigations is somewhat different than the environment of criminal
investigations. For example, subpoenas can be easily challenged and can
be complied with under few time pressures, both of which are important
explanations for the light legal regulations of subpoenas. See United
States v. Dionisio, 410 U.S. 1, 10 (1973). At the same time, the harm
that intelligence investigations seek to avoid is on average greater
than the harm a typical criminal investigation seeks to deter. In
addition, it is worth noting that Congress has opted to provide special
privacy protections to protect some types of Internet communications
and stored e-mails, raising the privacy protection beyond that provided
by subpoenas. See 18 U.S.C. Sec. 2703. Perhaps Congress should consider
a similar approach in the intelligence context, permitting subpoena-
equivalents to be used in some contexts but higher-threshold court
orders to be used in other contexts that raise more substantial privacy
concerns.
III. CONSTITUTIONALITY OF ORDERS TO COMPEL LIBRARY RECORDS AND INTERNET
COMMUNICATIONS
The statutory regulation of orders to compel evidence from third
parties is particularly important because the Fourth Amendment offers
little in the way of regulation of such orders. In this final section,
I wish to explain the constitutionality of orders to compel,
specifically in the context of library records and Internet
communications obtained from third party providers. My conclusion is
that orders to compel the disclosure of evidence from third parties
ordinarily do not require probable cause. Under current law, for
example, probable cause is not required to compel libraries to compel
library records.
The constitutionality of orders to compel evidence without probable
cause can be justified on two alternative grounds. The first is that
the disclosure of information to third parties has been held to
eliminate Fourth Amendment protection in that information. As the
Supreme Court stated in United States v. Miller, 425 U.S. 435, 443
(1976):
This Court has held repeatedly that the Fourth Amendment does
not prohibit the obtaining of information revealed to a third
party and conveyed by him to Government authorities, even if
the information is revealed on the assumption that it will be
used only for a limited purpose and the confidence placed in
the third party will not be betrayed.
Under the disclosure rationale of Miller, third parties normally
can be ordered to disclose records held by them without implicating the
Fourth Amendment on the theory that the information was disclosed to
them in the course of their coming into possession of the information.
Applying this rationale, courts have uniformly held that an
individual does not retain Fourth Amendment rights in non-content
records that reveal how that individual used an account or service
provided by a third party. A person may reasonably believe that the
third party will not disclose the information to the police, but this
alone does not create a Fourth Amendment ``legitimate'' or
``reasonable'' expectation of privacy in the information. For example,
a person does not retain a reasonable expectation of privacy in the
information the telephone company retains about how a particular
telephone account was used. See United States v. Fregoso, 60 F.3d 1314,
1321 (8th Cir. 1995). Similarly, a customer does not retain a
reasonable expectation of privacy in the information that Western Union
retains about how a particular Western Union account was used. See In
re Grand Jury Proceedings, 827 F.2d 301, 302-03 (8th Cir. 1987).
The rationale also applies to library records. For example, in
Brown v. Johnston, 328 N.W.2d 510 (Iowa 1983), a library challenged a
subpoena obtained by a State investigator who wanted to gather library
circulation records to see if anyone had checked out books relating to
cattle mutilation. The Iowa Supreme Court rejected the argument that an
ordinary subpoena could not be used to collect library records:
It is true the State's investigation was only preliminary;
and as Brown and the library board argue, no suspects were
identified nor was the search for information limited to any
named library patrons. This does not diminish the need for the
information, however, as we assume the whole purpose in
examining the record was to gain enough information so that the
investigation could be narrowed.
The State's interest in well-founded criminal charges and the
fair administration of criminal justice must be held to
override the claim of privilege here. Brown and the library
board have cited no cases to us which have reached a contrary
conclusion under similar facts, and we have found none. Id. at
513.
Although I have been unable to find any cases applying the Fourth
Amendment to bookstore records, the same analysis would seem to apply
to sales records kept by bookstores. To be sure, some State courts have
interpreted their own State constitutional provisions to create greater
privacy protections to regulate State police officers in the context of
bookstores. See, e.g., Tattered Cover, Inc. v. City of Thornton, 44
P.3d 1044 (Colo. 2002). But as far as I am aware, no court has held
that a person retains a reasonable expectation of privacy in their
bookstore customer records under the Fourth Amendment. As a general
matter, the Fourth Amendment rules that apply to bookstores are the
same as the Fourth Amendment rules that apply to other spaces. See,
e.g., Maryland v. Macon, 472 U.S. 463 (1985).
Finally, the same rationale applies to non-content Internet account
records. Non-content Internet account records are disclosed to the ISP,
and are not protected under the Fourth Amendment. See United States v.
Hambrick, 55 F. Supp. 2d 504, 508 (W.D. Va. 1999), aff 'd, 225 F.3d 656
(4th Cir. 2000) (unpublished opinion); United States v. Kennedy, 81 F.
Supp. 2d 1103, 1110) (D. Kan. 2000) (same).
This does not mean an individual can never have a reasonable
expectation of privacy in information held by third parties. Existing
caselaw focuses on whether the information transferred to the third-
party is disclosed to the third party or is sealed away from them. If a
person gives third party a sealed container to hold on their behalf,
then that person retains a reasonable expectation of privacy in the
unexposed contents of that sealed container. See, e.g., United States
v. Most, 876 F.2d 191, 197-98 (D.C. Cir. 1989); United States v. Barry,
853 F.2d 1479, 1481-83 (8th Cir. 1988). For that reason, a person
retains a reasonable expectation of privacy in the contents of sealed
postal letters or packages sent via UPS or FedEx until the point that
the letters and packages arrive at their destination. See Ex Parte
Jackson, 96 U.S. (6 Otto) 727, 733 (1877); Walter v. United States, 447
U.S. 649, 651 (1980).
It is unclear under current law how the sealed/unsealed distinction
applies to disclosed information such as Internet communications,
particularly in the context of the contents of Internet communications.
Courts may conclude that by sending an e-mail, the user discloses that
e-mail to an ISP under Miller. On the other hand, courts may conclude
that the contents of e-mail can be analogized to the contents of a
sealed letter, and thus retain Fourth Amendment protection. At the
current time, all we know is that the Fourth Amendment does not protect
non-content information held by ISPs, and may or may not protect
content information held by ISPs. Notably, this uncertainty is part of
what led Congress to impose greater statutory protections in the case
of e-mail contents sought in criminal investigations under 18 U.S.C.
Sec. 2703(a).
Finally, existing cases suggest that a subpoena or equivalent order
to compel without probable cause may be constitutionally sufficient
even if a suspect retains a reasonable expectation of privacy in the
information. The case here are sparse, as the courts have decided few
cases in which the government ordered a third party to disclose sealed
packages. But the few cases on this question suggest that the
government can subpoena information even if that information is
protected by a reasonable expectation of privacy; no probable cause
warrant is required. See United States v. Barr, 605 F. Supp. 114, 119
(S.D.N.Y. 1985) (permitting subpoena served on third-party mail service
for undelivered mail); United States v. Schwimmer, 232 F.2d 855, 861-63
(8th Cir. 1956) (permitting subpoena served on third-party storage
facility for private papers in facility's possession); Newfield v.
Ryan, 91 F.2d 700, 702-05 (5th Cir. 1937) (permitting subpoena served
on telegraph company for copies of defendants' telegrams).
In light of these cases, current law points to the use of orders to
compel evidence as being constitutional in the Fourth Amendment in most
if not all cases without a requirement of probable case. The most
difficult and least clear cases are orders to compel content records,
such as the contents of e-mails and sealed letters. In most
circumstances, however--and clearly in the case of non-content records
such as library records--orders to compel evidence do not require
probable cause under the Fourth Amendment.
__________
Prepared Statement of Kate Martin, Director, Center for
National Security Studies
While effective counterterrorism and counterintelligence require
that agencies share relevant information, sections 203 and 905 of the
USA Patriot Act fail to address the real difficulties in such sharing:
How to determine what information is useful for counterterrorism and
counterintelligence; how to determine what information would be useful
if shared; how to identify whom it would be useful to share it with;
and how to ensure that useful and relevant information is timely
recognized and acted upon. To the contrary, the approach of the Patriot
Act--which can fairly be summarized as share everything with everyone--
can be counted on to obscure and make more difficult the real challenge
of information sharing.
Widespread and indiscriminate warehousing of information about
individuals violates basic privacy principles. Amending the Patriot Act
to require targeted rather than indiscriminate information sharing
would restore at least minimal privacy protections and substantially
increase the likelihood that the government could identify and obtain
the specific information needed to prevent terrorist acts.
Section 203 of the USA Patriot Act allows unrestricted sharing of
sensitive information gathered by law enforcement agencies with the
CIA, the NSA, immigration authorities, the Secret Service, and White
House officials. Such sharing is not limited to officials with
responsibility for terrorism matters, nor are there any safeguards
regarding the subsequent use or dissemination of such information by
such officials (so long as the use is within the official duties of the
recipient). Section 203 allows the sharing of all information that is
in any way related to any American's contacts with or activities
involving any foreign government, group, or individual. (Section 203
allows the sharing of ``foreign intelligence information,'' ``foreign
intelligence'' and ``counterintelligence.'' The definition of ``foreign
intelligence information'' included in section 203 is tied to threats
and potential threats of terrorism, sabotage and clandestine
intelligence-gathering, the national defense and foreign affairs,
Sec. 203(a)(1)(iv), 203(b)(2)(C), and 203(d)(2). However, the
definitions of ``foreign intelligence'' and ``counterintelligence'' are
not even that limited.) Section 203 applies to all intercepts of
telephone conversations. It applies to all confidential information
obtained by a grand jury, which has the power to subpoena virtually any
records or testimony from any person merely at the request of a
prosecutor.
Section 905 overlaps with section 203, but makes such sharing
mandatory. It requires the Attorney General and the head of any other
law enforcement agency to ``expeditiously disclose'' to the Director of
Central Intelligence (and now the new Director of National
Intelligence) all ``foreign intelligence'' acquired during a law
enforcement investigation. The Attorney General may exempt only those
classes of foreign intelligence whose disclosure ``would jeopardize an
ongoing law enforcement investigation or impair other significant law
enforcement interests.'' Section 905 suffers from the same defects as
section 203: it covers the most sensitive grand jury information and
wiretap intercepts regardless of relevance, and contains no limits on
the use or redisclosure of the information by intelligence agency
staff. ``Foreign intelligence'' includes anything related to any
American's contacts with a foreign government, group or person.
The Act sets no standards or safeguards for use of this
information. While it requires the Attorney General to issue rules,
those rules simply require that information concerning citizens and
legal permanent residents be marked as such. Existing intelligence
agency protocols are so broad as to allow intelligence agencies to keep
all information obtained under section 203 or 905. See EO 12333 section
2.3.
Two and a half years after the passage of the Patriot Act, the 9/11
Commission staff confirmed that ``there is no national strategy for
sharing information to counter terrorism.'' The Department of Justice
has yet to explain how these Patriot Act provisions will focus the
bureaucracies on identifying what information is useful to locate
actual terrorists, analyzing that information, and determining what
actions to take based on the information. To the contrary, the
provisions essentially direct agencies simply to dump massive volumes
of unanalyzed information on other agencies. They facilitate the
construction of a vast intelligence data base on Americans. And they
effect an extraordinary change in the capability and authority of the
foreign intelligence agencies, including the CIA, to keep information
on Americans.
Congress should amend both sections 203 and 905 to provide some
simple privacy safeguards, which will also ensure that information
sharing is done in a more effective way.
Current law offers no protections against abuse. Too much
information may be turned over to the CIA and others, including
virtually all information about any American's contacts with any
foreigner or foreign group, including humanitarian organizations, for
example. Existing rules provide virtually no protection against
authorized government compilation of dossiers on millions of Americans
and use of those dossiers in intelligence operations.
Congress could provide some modest protections. The amendments
proposed below--limiting shared information to information relating to
terrorism or counterintelligence, limiting its dissemination to
officials working on those matters, requiring judicial approval, and
requiring marking to prevent redissemination--would not interfere with
the needs of counterterrorism or counterintelligence.
While the Justice Department claims that any modifications to the
information-sharing provisions would mean that agencies ``would be
required to identify proper legal authority prior to sharing or
disseminating information outside of the collecting agency or
community,'' such objection misses the point. See Justice Department,
USA Patriot Act: Sunsets Report, April 2005. The proposed amendments
would not change the legal authorities for sharing information, they
would simply help ensure that information is actually analyzed and
determined to be useful to counterterrorism and counterintelligence.
None of the uses of information outlined by the Justice Depaitinent in
its Patriot Act report would be prohibited because all of them relate
to terrorism.
But Congress should act to ensure that those agencies which first
obtain information and are best positioned to understand its context do
the work necessary to determine whether the information may be useful
or relevant to other agencies. When in doubt, they should of course err
on the side of transferring the information, but they should exercise
some judgment in doing so. Ideally, they should describe the potential
usefulness of the information when distributing it to other agencies.
We note that intelligence officials are already reporting that under
the current regime there is too much indiscriminate sharing of useless
information.
Specifically Congress should consider the following modifications.
1. When information is gathered pursuant to judicial power, the
court's approval should be required before transferring the information
to intelligence agencies, White House personnel, or other law
enforcement agencies in order to ensure that there is some real need
for more widely distributing the information. Accordingly, court
approval for sharing criminal wiretap intercepts of conversations and
e-mail and secret grand jury information should be obtained, except
when there is no time to obtain such approval in order to prevent an
imminent terrorist act or the flight of a suspect.
2. The information that should be shared with the intelligence
agencies, the White House, etc., should be limited to information
relevant to terrorism or counterintelligence, rather than all
information concerning any foreign contacts, the vast majority of which
have nothing to do with terrorism. If the information transferred by
law enforcement to the intelligence community were limited to ``foreign
intelligence information'' as that term is defined in the Foreign
Intelligence Surveillance Act, it would offer some protection against
the CIA and others constructing a data base on the domestic activities
of Americans. This safeguard was included in the Patriot Act, H.R. 2975
(107 Cong.), as approved by the House Committee on the Judiciary in
October 2001.\1\
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\1\ See, H.R. REP. No. 236, 107th Cong., 1st Sess., pt. 1(2001), at
8, available at http://judiciary.house.gov/legacy/107-236p1.pdf.
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3. The information should be shared only with those officials who
are directly involved in terrorism or counterintelligence.
4. There should be procedures for marking and safeguarding the
shared information so these limits can be enforced and to protect
against the redissemination of the information beyond these limits,
much as classified information is marked and stored. Confidential grand
jury information should be marked as such and intercepts of Americans'
conversations and e-mails should be marked to prohibit indiscriminate
circulation.
CONCLUSION
One of the most basic protections against government abuses has
been the principle that a government agency should only collect
information about individuals that it needs for a specific and
articulated purpose, should use it only for the purposes for which it
was collected, should not keep it any longer than necessary, and should
not share it with other government agencies except for very good
reasons. The Patriot Act violates that principle by adopting the
approach that myriad government agencies should collect, share and
maintain forever as much information on as many people as possible.
Requiring the minimal protection that the government articulate why
specific information could be useful for counterterrorism or
counterintelligence before widely distributing it would help keep the
government focused on the information needed to locate the next
attackers, instead of ware-
housing personal information about millions of Americans.
Chairman Roberts. I now recognize the distinguished Vice
Chairman.
Vice Chairman Rockefeller. Thank you, Mr. Chairman. I will
follow the same procedure you have. I think it's a wise one.
I'm ready to hear the witnesses.
[The prepared statement of Vice Chairman Rockefeller
follows:]
Prepared Statement of Hon. John D. Rockefeller III, Vice Chairman
This week and next the Committee will hold two open hearings on the
Patriot Act.
The Patriot Act, which was enacted soon after the attacks of
September 11, 2001, contains 10 titles. Nine of those titles are
permanent law.
One title of the Patriot Act--Title II on Enhanced Surveillance
Procedures--has 16 provisions that will cease to have effect, or
sunset, on December 31, 2005. In addition, the recently enacted
Intelligence Reform Act authorizes the use of the Foreign Intelligence
Surveillance Act in the case of so-called ``lone wolf '' terrorists.
That new authority is also subject to sunset at the end of this year.
Congress should resolve two questions this year: first, on the
basis of experience or further reflection since September 11, 2001,
should any of the expiring authorities be amended; and second, as
originally enacted or as amended, should they be made permanent?
The process of evaluation of the expiring provisions is under way.
In response to a request from Senator Feinstein, the Department of
Justice has submitted to Congress a lengthy ``Sunsets Report'' which
sets forth a case for each of the 16 provisions of the Patriot Act that
will sunset at the end of this year.
The Judiciary Committee has begun a series of Patriot Act hearings.
It heard 2 weeks ago from the Attorney General and the FBI Director,
something our Committee will do next week on April 27th. We have been
informed that the Judiciary Committee plans to hold an additional
hearing in May.
Members of the Senate have introduced bills that propose amendments
to expiring Patriot Act provisions. There are also proposals to amend
other provisions of the Act. On our Committee, Senator Corzine has
joined a bipartisan group of 11 Members in cosponsoring S. 737, the
``Security and Freedom Enhancement Act,'' a bill introduced by Senator
Craig to amend several authorities in the Patriot Act. Senators Wyden
and Corzine are cosponsors of S. 317, the ``Library, Bookseller, and
Personal Records Privacy Act.''
In short, Congress has begun a serious effort to examine the
expiring provisions of the Patriot Act. There were good reasons to act
quickly after the September 11 attacks. Because of the need for speed
then, it was wise to require, through a sunset provision, that there be
a further evaluation of portions of the Act after several years of
experience.
We now have an opportunity to assess carefully what surveillance
and search powers are needed in gathering intelligence about terrorism
and other threats. I look forward to hearing testimony and working with
colleagues on our Committee and on the Judiciary Committee. Our goal,
of course, should be to ensure that there is a sound, long-term basis
for the effective gathering of intelligence in a manner consistent with
our Constitution and values.
Our panel today will assist us in beginning that effort. The
members of the panel--Jim Dempsey of the Center for Democracy and
Technology, Heather Mac Donald of the Manhattan Institute for Policy
Research, and Gregory Nojeim of the ACLU are all distinguished
participants in the public debate about the Patriot Act. I look forward
to their testimony today and to next week's testimony from the
Administration.
In addition, the Committee has received four statements for the
record: (1) from former Attorney General Edwin Meese and Paul
Rosenzweig of the Heritage Foundation; (2) from former Congressman Bob
Barr, chairman of a recently created coalition named Patriots to
Restore Checks and Balances; (3) from Kate Martin, Director of the
Center for National Security Studies; and (4) Orin Kerr, Associate
Professor of Law at the George Washington University Law School.
I am pleased that the Chairman has asked for and obtained unanimous
consent to place these additional statements on our record of this
hearing. The statements will make an important contribution to the
Committee's understanding of the issues before us. I thank the authors
of each and the witnesses who are here today for their assistance to
the Committee.
Chairman Roberts. We will go in the order of introduction.
Mr. Nojeim, would you like to open up, please?
[The prepared statement of Mr. Nojeim follows:]
Prepared Statement of Gregory T. Nojeim
Chairman Roberts, Vice Chairman Rockefeller and Members of the
Committee:
I am pleased to appear before you today on behalf of the American
Civil Liberties Union and its more than 400,000 members, dedicated to
preserving the principles of the Constitution and Bill of Rights at
this rare, and crucial, public oversight hearing on USA PATRIOT Act of
2001.\1\
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\1\ Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act)
Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.
---------------------------------------------------------------------------
The Patriot Act was passed by Congress in 2001 just 6 weeks after
the terrorist attacks of September 11. Although the act passed by wide
margins, members on both sides of the aisle expressed reservations
about its impact on fundamental freedoms and civil liberties. As a
result, Congress included a ``sunset clause'' providing that over a
dozen provisions will expire on December 31, 2005, if Congress does not
act to renew them.
A number of the provisions that will expire are within the
jurisdiction of this committee, including some of the most
controversial provisions. This statement's main focus is on those
Patriot Act intelligence provisions that pose the greatest risk for
civil liberties.\2\
---------------------------------------------------------------------------
\2\ This statement is adapted from a longer memorandum that
examines a number of other Patriot Act and related issues in greater
depth, including immigration, material witness and ``enemy combatant''
detentions, criminal ``sneak and peek'' search warrants, the crime of
material support of terrorism and the definition of domestic terrorism.
See Memo to Interested Persons Outlining What Congress Should Do About
the Patriot Act Sunsets, March 28, 2005, available at: http://
www.aclu.org/news/NewsPrint.cfm?ID=17846&c=206.
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Congress should use the upcoming debate over the renewal of parts
of the Patriot Act as an opportunity to reassert its rightful role in
determining law enforcement and national security policy in the post-9/
11 context, which has waned as the power of the executive branch has
waxed. Before re-authorizing any intelligence power, this committee
should require the executive branch to meet the standard articulated by
the bipartisan 9-11 Commission.
First, Congress should re-examine the specific provisions
that sunset, taking care not to renew any provision unless the
government can show ``(a) that the power actually materially enhances
security and (b) that there is adequate supervision of the executive's
use of the powers to ensure protection of civil liberties.'' \3\
---------------------------------------------------------------------------
\3\ Final Report of the National Commission on Terrorist Attacks
Upon the United States (``The 9/11 Commission Report'') 294-95 (2004)
(boldfaced recommendation)
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Second, ``[i]f the power is granted, there must be
adequate guidelines and oversight to properly confine its use.'' \4\
---------------------------------------------------------------------------
\4\ Id.
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Third, because the issues of national security and civil
liberties posed by anti-terrorism powers that are not part of the
Patriot Act sunset are at least as serious as any posed by those
provisions that do sunset, Congress should undertake a broader review
of anti-terrorism powers, both within and outside of the Patriot Act,
using the same standard of review.
Finally, Congress should resist efforts by the executive
branch to evade searching review of its existing powers, both under the
Patriot Act and under other legal authorities, by shifting the debate
to new anti-terrorism legislation, such as proposals for administrative
subpoenas or new death penalties.
Congress may not be able to fully review or assess the
effectiveness, and impact on civil liberties, of some anti-terrorism
powers that the executive branch was granted in the Patriot Act. The
lack of meaningful information about the use of many powers is
sometimes a direct result of excessive secrecy in the executive branch,
and sometimes the result of necessary secrecy. In any case where
sufficient information is not available to undertake a thorough review,
Congress should set a new sunset date and impose additional reporting
requirements to facilitate a proper review, rather than cede those
powers permanently to the executive branch.
Because many domestic intelligence authorities operate in complete
secrecy, this committee plays a particularly critical role in
determining whether specific intelligence powers ``actually materially
enhance security.'' Only an intensive and painstaking process of
examining the facts regarding the use of these powers can answer that
question.
This committee was created in large part to perform just that
function. It should not be content with general statements of the
Patriot Act's usefulness or selective accounts of how certain sections
have been used. Rather, we hope it will aggressively and thoroughly
examine whether administration claims that certain powers are vital to
the prevention of terrorism are born out by specific facts.
Until now, the government has fallen short. Just last week,
Judiciary Chairman Arlen Specter expressed frustration at the Justice
Department's inability to provide such facts even in a classified
setting. ``This closed-door briefing was for specifics,'' Senator
Specter explained. ``They didn't have specifics.'' \5\
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\5\ Eric Lichtblau, Specter Voices Frustration Over Briefing on
Patriot Act, N.Y. Times, Apr. 13, 2005.
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CLEAR EVIDENCE OF PATRIOT ACT ABUSES, BUT EXTENT OF PROBLEM STILL
SECRET
In its three and one-half years, the government has abused and
misused the Patriot Act while seeking significant expansions of powers
granted under the Patriot Act.
Secrecy permeates the Patriot Act, particularly in its expansions
of intelligence authorities. Many powers are accompanied by statutory
gag orders. Moreover, the administration has taken the posture that
information that is embarrassing to it must be kept secret for reasons
of national security. For these reasons, it has been extremely
difficult to uncover information about how the Patriot Act has been
used, and even information about whether particular sections have been
used at all. The ACLU has repeatedly sought this information in
letters, requests under the Freedom of Information Act (FOIA) and in
FOIA litigation.
Despite the efforts of the executive branch to cover up information
about how controversial provisions of the Patriot Act have been used,
some information has become public. This information is disturbing in
and of itself, and may be emblematic of other abuses that have not yet
become public. Appended to this testimony are some examples of abuses
of intelligence powers expanded under the Patriot Act, and of the chill
on the exercise of First Amendment rights that such powers can create.
PATRIOT ACT INTELLIGENCE POWERS: GREATER SECRECY, LESS MEANINGFUL
REVIEW
In the debate over the Patriot Act, we ask the committee to pay
particular attention to the most intrusive expanded intelligence
surveillance techniques.
Secret Records Searches Without Probable Cause or an Ability to
Challenge: Library Records, Other ``Tangible Things,'' and
National Security Letters
Perhaps no sections of the Patriot Act have become more
controversial than the sections allowing the government secretly to
obtain confidential records in national security investigations--
investigations ``to protect against international terrorism or
clandestine intelligence activities.''
National security investigations are not limited to gathering
information about criminal activity. Instead, they are intelligence
investigations designed to collect infounation the government decides
is needed to prevent--``to protect against''--the threat of terrorism
or espionage. They pose greater risks for civil liberties because they
potentially involve the secret gathering of information about lawful
political or religious activities that Federal agents believe may be
relevant to the actions of a foreign government or foreign political
organization (including a terrorist group).
The traditional limit on national security investigations is the
focus on investigating foreign powers or agents of foreign powers.
Indeed, the ``foreign power'' standard is really the only meaningful
substantive limit for non-criminal investigations given the astonishing
breadth of information a government agent might decide is needed for
intelligence reasons. The Patriot Act eliminated this basic limit for
records searches, including the power under the Foreign Intelligence
Surveillance Act (FISA) to obtain with a FISA court order any records
or other ``tangible things,'' and the FBI's power to obtain some
records without any court review at all.
Section 215 of the Patriot Act allows the government to
obtain any records, e.g., library and bookseller records, medical
records, genetic information, membership lists of organizations, and
confidential records of refugee service organizations, as well as any
other ``tangible things'' with an order from the FISC. The order is
based merely on a certification by the government that the records are
``sought for'' a national security investigation and the judge is
required to issue the order. The order contains an automatic and
permanent gag order. Section 215 is subject to the sunset clause. Two
weeks ago, the government acknowledged for the first time that Section
215 has been used, that it has been used 35 times, and that it was used
to obtain credit, apartment, ISP and other records, but not library or
medical records.
Section 505 of the Patriot Act expanded the FBI's power to
obtain some records in national security investigations without any
court review at all. These ``national security letters'' can be used to
obtain financial records, credit reports, and telephone, Internet and
other communications billing or transactional records. The letters can
be issued simply on the FBI's own assertion that they are needed for an
investigation, and also contain an automatic and permanent
nondisclosure requirement. Section 505 does not sunset.
Although such demands never required probable cause, they did
require, prior to the Patriot Act, ``specific and articulable facts
giving reason to believe'' the records pertain to an ``agent of a
foreign power.'' The Patriot Act removed that standard for issuing
records demands in national security investigations.
As a result, a previously obscure and rarely used power can now be
used far more widely to obtain many more records of American citizens
and lawful residents. Because the requirement of individual suspicion
has been repealed, records powers can now be used to obtain entire data
bases of private information for ``data mining'' purposes--using
computer software to tag law abiding Americans as terrorist suspects
based on a computer algorithm.
These records search provisions are the subject of two court
challenges by the ACLU. In Muslim Community Association of Ann Arbor v.
Ashcroft, No. 03-72913 (E.D. Mich.), the ACLU has challenged section
215 of the Patriot Act First and Fourth Amendment grounds. As explained
in the case example, the ACLU's challenge has uncovered serious and
unconstitutional chilling effects of section 215 on the exercise of
basic freedoms. The district court has not yet ruled in this case.
In Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004), a Federal
district court struck down a ``national security letter'' records power
expanded by the Patriot Act, agreeing with the ACLU that the failure to
provide any explicit right for a recipient to challenge a national
security letter search order violated the Fourth Amendment and that the
automatic secrecy rule violated the First Amendment. The case is now on
appeal before the United States Court of Appeals for the Second
Circuit.
There has been some confusion about whether Doe v. Ashcroft struck
down a provision of the Patriot Act. In fact, Doe v. Ashcroft struck
down, in its entirety, 18 U.S.C. Sec. 2709(b), the national security
letter authority for customer records of communications service
providers, as amended by section 505(a) of the Patriot Act. The court
referred repeatedly to the Patriot Act in its opinion. To be clear, the
court invalidated all of section 505(a) of the Patriot Act. It is
simply inaccurate to imply that the court's decision was unrelated to
the Patriot Act, or that it did not strike down a provision of the
Patriot Act. If the court's decision is sustained on appeal, section
505(a) of the Patriot Act will no longer have any force or effect.\6\
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\6\ While the use of national security letters are secret, the
press has reported a dramatic increase in the number of letters issued,
and in the scope of such requests. For example, over the 2003-04
holiday period, the FBI reportedly obtained the names of over 300,000
travelers to Las Vegas, despite casinos' deep reluctance to share such
confidential customer information with the government. It is not clear
whether the records were obtained in part with a national security
letter, with the threat of such a letter, or whether the information
was instead turned over voluntarily or to comply with a subpoena.
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Both FISA records demands and national security letters can be used
to obtain sensitive records relating to the exercise of First Amendment
rights. A FISA record demand could be used to obtain a list of the
books or magazines someone purchases or borrows from the library. A
FISA record demand could be used to obtain the membership list of a
controversial political or religious organization. A national security
letter could be used to monitor use of a computer at a library or
Internet cafe under the government's theory that providing Internet
access (even for free) makes an institution a ``communications service
provider'' under the law.
While both national security letters and FISA records demands
cannot be issued in an investigation of a United States citizen or
lawful permanent resident if the investigation is based ``solely'' on
First Amendment activities, this provides little protection. An
investigation is rarely, if ever, based ``solely'' on any one factor;
investigations based in large part, but not solely, on constitutionally
protected speech or association are implicitly allowed. An
investigation of a temporary resident can be based ``solely'' on First
Amendment activities, and such an investigation of a foreign visitor
may involve obtaining records pertaining to a United States citizen.
For example, an investigation based solely on the First Amendment
activities of an international student could involve a demand for the
confidential records of a student political group that includes United
States citizens or permanent residents.
The expanded scope and broader use of both FISA records demands and
national security letters has exacerbated other constitutional problems
with the statute under both the First Amendment and the Fourth
Amendment. Unlike almost every other type of subpoena or records
demand, neither statute contains any explicit right to file a motion to
quash the demand before a court on the ground that the demand is
unreasonable or seeks privileged information. Similarly, both types of
records demands bar the recipient from disclosing that the demand has
been issued. This permanent secrecy order is imposed automatically, in
every case, without any review by a judge, without any right to
challenge. The district court ruling in Doe v. Ashcroft makes clear
these problems are severe enough to invalidate the entire national
security letter statute--not just the portions amended by the Patriot
Act.
A power to secretly obtain records of ordinary Americans--i.e.,
Americans who are not suspected of involvement with any foreign
government or terrorist organization--outside of a criminal
investigation is a vast power. The government bears the burden in
showing such a power ``actually materially enhances security.'' If the
government sustains this burden, it is clear, as even Attorney General
Gonzales has acknowledged, that additional safeguards must be added.
Recommendation: Congress should bring intelligence records powers
(national security letters and FISA records search orders) back into
line with basic constitutional freedoms. Congress should enact the SAFE
Act, which restores the requirement of individual suspicion, provides a
right to challenge records demands, limits the secrecy order and
provides for a right to challenge the secrecy order.
The SAFE Act (``Security and Freedom Enhancement Act,'' S. 737)
restores the requirement of ``specific and articulable facts giving
reason to believe'' the records involve an ``agent of a foreign power''
for both FISA records demands and national security letters. In
addition, the SAFE Act makes explicit the right to file a motion to
quash the records demands because they are unreasonable, contrary to
law, or seek privileged information. The SAFE Act also sets standards
for a judicially imposed, temporary secrecy order that can be
challenged by the recipient of a records demand. Finally, the SAFE Act
provides a right to notice, and an opportunity to challenge, before
information from a FISA records search or national security letter
search can be used in a court proceeding.
As the Attorney General concedes is necessary, Congress should
certainly make clear what the government has now conceded should be the
law--that the secrecy order does not prevent recipients from discussing
records demands internally or obtaining legal advice. Without public
scrutiny, the potential for unreasonable ``fishing expeditions'' using
a secret, unreviewable records power is simply too great.
Secret Searches and Surveillance of Homes and Offices
A government search or electronic surveillance of a home or office
generally requires a warrant based on probable cause of crime under the
Fourth Amendment. As a general rule, the owner of the home or office is
entitled to notice of the search. Foreign intelligence searches have
been an exception to this rule. They do not require criminal probable
cause and forbid notice to the owner.
The special power to secretly search a home or office, without ever
notifying the owner, is among the most intrusive domestic surveillance
powers available to the Federal Government. Such ``black bag jobs''
were the hallmark of national security investigations run amok,
including COINTELPRO and other investigations of civil rights
activists, anti-war activists, and other Americans who in the end were
guilty of nothing more than peacefully opposing government policies.
The inappropriate use of a secret search power, without court
oversight, led directly to warrantless wiretaps of civil rights leaders
and, eventually, an unauthorized ``black bag job'' at the Watergate,
sending a shock wave through the Nation and prompting thorough and
searching reviews of the intelligence community. These reviews led
Congress to enact important reforms of intelligence powers, including
the passage of the Foreign Intelligence Surveillance Act (FISA) and the
creation of this committee.
While FISA secret searches and wiretaps pre-date the Patriot Act,
two vital protections that cabined such searches until 2001 have been
seriously eroded by amendments that are subject to the December 31,
2005 sunset. First, section 218 of the Patriot Act allowed the
government to obtain a FISA secret search order even where the
``primary purpose'' of the search was not foreign intelligence. Second,
for searches of so-called ``lone wolf '' terror suspects, section 6001
of the Intelligence Reform and Terrorism Prevention Act of 2004\7\
eliminated, for the first time, the basic requirement applied by the
Foreign Intelligence Surveillance Court for all FISA secret searches
and surveillance: that probable causes exists that the target of the
search is a foreign power or agent of foreign power.
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\7\ Pub. L. No. 108-458, 118 Stat. 3638.
---------------------------------------------------------------------------
Section 218 of the Patriot Act. This provision of the Patriot Act
takes aim at a provision of FISA designed to ensure against the
government using FISA improperly as an end-run around the Fourth
Amendment for criminal suspects. Prior to the Patriot Act, government
officials had to certify that the primary purpose of a secret FISA
search was to obtain foreign intelligence.\8\ Section 218 of the
Patriot Act weakened this standard, allowing agents to obtain these
warrants so long as they certify that ``a significant purpose'' of the
search is foreign intelligence.
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\8\ The pre-Patriot Act statute required the government to certify
that foreign intelligence was ``the purpose'' of the search. Where the
government had both foreign intelligence and criminal investigation
purposes, courts interpreted this language to mean that foreign
intelligence purpose had to be the ``primary purpose'' of the search;
otherwise, the government should use its criminal powers. See In Re
Sealed Case, 310 F.3d 717, 726 (For. Intel. Surv. Ct. Rev. 2002)
(collecting pre-Patriot Act cases).
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The danger of section 218's lower standard is that the government
will cut corners in criminal cases. Because foreign intelligence no
longer must be the primary purpose of the search, the government can
use FISA as a substitute for traditional criminal powers. As a result,
now the government can--for what are primarily criminal searches--evade
the Fourth Amendment's constraints of probable cause of crime and
notice to the person whose property is being searched.
Brandon Mayfield is a case where such corners may have been cut. As
described in more detail in the appendix, Mr. Mayfield is a Portland,
Oregon resident who is a convert to Islam and a civil rights advocate.
Mr. Mayfield was wrongly accused by the government of involvement in
the Madrid bombing as a result of a evidence, including a mistaken
fingerprint identification, that fell apart after the FBI
re-examined its case following its arrest and detention of Mr. Mayfield
on a material witness warrant.
As Attorney General Gonzales acknowledged at a hearing before the
Senate Judiciary Committee, Section 218 of the Patriot Act was
implicated in the secret search of Mr. Mayfield's home. The FBI
secretly entered the home of an innocent man it wrongly suspected of a
crime without a warrant based on criminal probable cause. It did so
because the Patriot Act had made it easier to conduct such a search
with a FISA search order. While there, agents took hundreds of
photographs, copied four computer hard drives and seized 10 DNA
samples. Prior to the Patriot Act, it is doubtful the search could have
taken place under FISA, and instead would likely have been governed by
normal search warrant procedures and the exacting standard of criminal
probable cause.
Recommendation: Congress should permit limited access to FISA
applications, consistent with national security, where FISA-gathered
information is used in a criminal case. Congress can do so by enacting
legislation applying CIPA to FISA surveillance. It should also ensure
that prosecutors do not direct intelligence surveillance.
If the government is able to meet the burden of showing section 218
``actually materially enhances security,'' the Mayfield case and the
danger of future abuses shows the need for additional safeguards.
Without re-building the much-maligned ``wall'' between foreign
intelligence and criminal investigations, Congress should follow the
approach of the Foreign Intelligence Surveillance Court (FISC),
restoring its power to serve its proper supervisory function to prevent
the misuse of FISA. Congress should empower the court to make sure
foreign intelligence investigations are not directed by Federal
prosecutors, although prosecutors and criminal investigators should be
allowed full briefings on such investigations.
In its first (and, so far, only) public opinion, the FISC, in an
opinion by Judge Lamberth, expressed alarm at the fact that ``criminal
prosecutors will tell the FBI when to use FISA (perhaps when they lack
probable cause)'' of crime, and noting its highly intrusive aspects,
including:
a foreign intelligence standard instead of a criminal
standard of probable cause;
use of the most advanced and highly intrusive techniques
for intelligence gathering; and
surveillances and searches for extensive periods of time;
based on a standard that the U.S. person is only using or about to use
the places to be surveilled and searched, without any notice to the
target unless arrested and prosecuted, and, if prosecuted, no
adversarial discovery of the FISA applications and warrants.'' \9\
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\9\ In re All Matters Submitted to the Foreign Intelligence
Surveillance Court, 218 F. Supp. 2d 611, 624 (For. Intel. Surv. Ct.
2002).
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Judge Lamberth observed that the FISC's members had ``specialized
knowledge,'' had reviewed ``several thousand FISA applications,'' and
were ``mindful of the FISA's pre-eminent role in preserving our
national security, not only in the present national emergency, but for
the long term as a constitutional democracy under the rule of law.''
\10\ It reasoned that, as a result, it retained supervisory powers to
protect against the misuse of FISA for criminal investigative purposes.
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\10\ Id. at 615.
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The Foreign Intelligence Surveillance Court of Review reversed this
opinion, reasoning that section 218 of the Patriot Act had stripped the
FISC of this role.\11\ If Congress reauthorizes section 218, it should
amend it to make clear that the provision does not prohibit the FISC
from adopting guidelines to prevent the direction and control of
foreign intelligence investigations by prosecutors for law enforcement
ends.
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\11\ See In re Sealed Case, 310 F.3d 717 (For. Intel. Surv. Ct.
Rev. 2002).
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Congress should also explore a remedy for one of the serious
problems inherent in making FISA searches more available in what are
primarily criminal investigations: the lack of ``adversarial discovery
for FISA applications and warrants.'' This is in marked contrast to the
extensive discovery available to criminal defendants, enabling the
court to hold government officials accountable for unlawful searches
and surveillance.
Congress should enact legislation making available to the defense
such ``adversarial discovery of FISA applications and warrants'' using
the carefully crafted Classified Information Procedures Act (CIPA).
Last Congress, the ACLU strongly supported S. 1552, the Protecting the
Rights of Individuals Act, sponsored by Senators Lisa Murkowsky (R-AK)
and Ron Wyden (D-OR), which included this provision at section 9. An
identical provision was also included as section 401 of S. 2528, the
Civil Liberties Restoration Act, sponsored by Senators Kennedy (D-MA),
Corzine (D-NJ) and Leahy (D-VT), among others.
Section 6001 of the Intelligence Reform and Terrorism Prevention
Act of 2004. Section 6001 further eroded the basic safeguards included
in FISA by authorizing, for the first time, secret searches and
surveillance of homes and businesses where there is neither criminal
probable cause nor probable case that the person is acting on behalf of
any foreign power.
FISA rests what would otherwise plainly be unconstitutional
searches (because they are not based on probable cause of crime) on an
alternate showing: probable cause that those individuals are acting on
behalf of a foreign power. By eliminating this alternate showing for
non-citizen visitors to the United States suspected of being ``lone
wolf '' terrorists, we believe section 6001 violates the Fourth
Amendment.
Moreover, section 6001 was not needed to address deficiencies in
the use of FISA search powers uncovered after September 11, its
original rationale. The National Commission on Terrorist Attacks Upon
the United States (``9-11 Commission'') uncovered a number of serious,
structural breakdowns in the intelligence community prior to September
11. A lack of legal authority to collect intelligence information was
not among its findings.
Section 6001 has erroneously been described as necessary to respond
to the government's failure to seek a warrant to search the laptop
computer of suspected terrorist Zacarias Moussaoui. The 9-11 Commission
rejected that conclusion, finding that government agents
``misunderstood and misapplied'' guidelines regarding FISA search
warrants, and that these mistakes contributed to their failure to seek
either a criminal or FISA warrant in the Moussaoui case.\12\ The 9-11
Commission did not recommend any change to existing legal authorities,
including FISA.
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\12\ Final Report of the National Commission on Terrorist Attacks
Upon the United States 79, 540 n.94 (2004).
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In a February 2003 report on FISA oversight, Senators Leahy,
Grassley and Specter noted, with respect to this proposed change, that
the Department of Justice was unable to provide even a single case,
even in a classified setting, that explained why what became section
6001 was needed. As the report states, ``In short, DOJ sought more
power but was either unwilling or unable to provide an example as to
why.''
Section 6001 could do serious harm to the government's anti-
terrorism efforts if a court concludes that the surveillance it
authorizes violates the Fourth Amendment, making the evidence obtained
by such surveillance inadmissible. The ``foreign power'' standard--
which section 6001 eliminates for non-citizens--is integral to the
rationale given by the Foreign Intelligence Surveillance Court of
Review in its opinion upholding FISA surveillance against a
constitutional challenge.\13\
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\13\ See In re Sealed Case, supra, at 738 (relying on ``foreign
power'' probable cause to hold that FISA secret searches and
surveillance satisfy Fourth Amendment standards of reasonableness).
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This committee should review carefully actual applications for
secret searches or surveillances under the new power provided by
section 6001 to determine whether such searches or surveillance could
have been undertaken using traditional criminal powers, and whether
section 6001 ``actually materially enhances security.'' If the
government satisfies this test and Congress decides to re-authorize
section 6001, Congress should consider additional safeguards.
Recommendation: Congress should modify section 6001 to provide a
presumption that an individual who is involved in international
terrorism is acting for a foreign power. This compromise, offered by
Senator Dianne Feinstein (D-CA) to legislation that became section
6001, would give the Foreign Intelligence Surveillance Court more
discretion to ensure against misuse of FISA.
When S. 113, the legislation that became section 6001, was being
debated in the Senate, Senator Dianne Feinstein offered a compromise
that the ACLU supported. The Feinstein amendment would have formally
preserved the FISA requirement that the FISA court determines that the
target of a surveillance order is an agent of a foreign power before a
surveillance order is authorized, but it allowed the court to presume
such agency based on conduct that does not necessarily show such
agency. Because the amendment would preserve some discretion on the
part of the FISA court to determine that an individual should not be
subject to surveillance because they are not, in fact, an agent of a
foreign power, the ACLU urges Congress to adopt the Feinstein amendment
if it decides to reauthorize section 6001.
Wiretapping and Electronic Surveillance Without Judicial Safeguards
Limiting
Orders to the Targets of an Investigation
``General warrants''--blank warrants that do not describe what may
be searched--were among those oppressive powers used by the British
crown that led directly to the American Revolution. As a result, the
framers required all warrants to ``particularly describ[e] the place to
be searched, and the persons or things to be seized.''
The same ``particularity'' requirements apply to wiretap orders. In
the landmark case United States v. Donovan, 429 U.S. 413 (1977), a
majority upheld the Federal criminal wiretap law, noting that Congress
had redrafted the law to include safeguards regarding, among other
things, the need to identify targets of surveillance in response to the
``constitutional command of particularization.''\14\
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\14\ Id. at 426-27 (quoting S. Rep. No. 1097, 90th Cong., 2nd
Sess., at 66 (1968), reprinted in U.S. Code Cong. and Admin. News 1968,
at 2190).
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Congress has also authorized Federal judges to issue electronic
surveillance orders in foreign intelligence cases, including wiretaps
of telephone conversations and intercepts of the content of other
electronic communications (faxes, e-mail, etc.).
The Patriot Act erodes the basic constitutional rule of
particularization:
Section 206 creates ``roving wiretaps'' in foreign
intelligence cases. As amended by later legislation, these wiretaps do
more than allow the government to get a single order that follows the
target of surveillance from telephone to telephone. The government can
now issue ``John Doe'' roving wiretaps that fail to specify a target or
a telephone, and can use wiretaps without checking that the
conversations they are intercepting actually involve a target of the
investigation. Section 206 is subject to the Patriot Act's sunset
clause.
Section 207 greatly increases the length of time that
foreign intelligence wiretaps may be used without any judicial
oversight--from 90 days to 6 months for the initial order, with
renewals allowing surveillance to continue for a year before require
judicial approval. Section 207 is subject to the Patriot Act's sunset
clause.
Section 206 of the Patriot Act: Foreign intelligence ``roving
wiretaps.'' ``Roving wiretaps'' are a particularly potent form of
electronic surveillance, allowing the government to obtain a single
wiretap order that follows a target as the target uses different
telephones or devices to communicate. Prior to the passage of the
Patriot Act, roving wiretaps were available in criminal investigations
(including criminal investigations of terrorists), but were not
available in foreign intelligence investigations.
Because roving wiretaps contain more potential for abuse than
traditional wiretaps, which apply to a single telephone or other
device, when Congress enacted roving wiretaps for criminal
investigations, it insisted on important privacy safeguards. First, a
criminal wiretap must specify either the identity of the target or the
communications device being used. In other words, a surveillance order
may specify only the target, or only the phone, but it must specify one
or the other. Second, a criminal wiretap that jumps from phone to phone
or other device may not be used unless the government ``ascertains''
that the target identified by the order is actually using that device.
When Congress enacted the Patriot Act, it extended ``roving
wiretap'' authority to FISA investigations, but did not include the
common sense ``ascertainment'' safeguard. Shortly thereafter, the newly
enacted roving wiretap authority was broadened by the Intelligence Act
for fiscal year 2002, which authorized wiretaps where neither the
target nor the device was specified. As a result, FISA now allows
``John Doe'' roving wiretaps--wiretaps that can follow an unknown
suspect from telephone to telephone based only on a potentially vague
physical description, opening the door to surveillance of anyone who
fits that description, or anyone else who might be using that
telephone.
Because of this danger, if Congress is satisfied the government has
met its burden to show FISA roving surveillance authority ``actually
materially enhances security'' and should be renewed, it should include
additional privacy safeguards.
Recommendation: Congress should include an ascertainment
requirement and should require electronic surveillance orders to
specify either a target or a telephone or other device, by enacting the
bipartisan SAFE Act of 2005.
Congress should tighten the FISA roving wiretap so that it has the
same safeguards for privacy as criminal roving wiretaps. Supporters of
the Patriot Act often argue that changes to the law were needed to give
the government the same powers in foreign intelligence investigations
that it already had in criminal investigations. To the extent that is
appropriate, it is fair to insist that the same safeguards apply as
well.
Section 2 of S. 737, the SAFE Act, would provide just such
safeguards. While it preserves FISA roving surveillance authority, it
also makes sure that these privacy safeguards, which apply to criminal
roving wiretaps, would also apply to FISA roving wiretaps.
Section 207 of the Patriot Act. The time periods for foreign
intelligence surveillance orders were already much longer than for
criminal surveillance orders even before the passage of the Patriot
Act. Permitting surveillance to continue for a year with no judicial
review opens the door for abuse. The Justice Department's main
justification for allowing review to continue for such a long period
has been the ability to conserve attorney time and other resources
needed to process renewal applications.
If the administration can show the sharp increases in FISA secret
searches and surveillance enabled by this and other provisions
``actually materially enhances security,'' Congress should consider the
cost in lost oversight of highly intrusive powers. It may
