USA PATRIOT Act Sunset

Several sections of Title II of the USA PATRIOT Act (the Act) relating to
enhanced foreign intelligence and law enforcement surveillance authority expire on
December 31, 2005. Thereafter, the authority remains in effect only as it relates to
foreign intelligence investigations begun before sunset or to offenses or potential
offenses begun or occurring before that date. The temporary provisions are: sections
201 (wiretapping in terrorism cases), 202 (wiretapping in computer fraud and abuse
felony cases), 203(b) (sharing wiretap information), 203(d) (sharing foreign intelligence
information), 204 (Foreign Intelligence Surveillance Act (FISA) pen register/trap &
trace exceptions), 206 (roving FISA wiretaps), 207 (duration of FISA surveillance of
non-United States persons who are agents of a foreign power), 209 (seizure of voice-
mail messages pursuant to warrants), 212 (emergency disclosure of electronic
surveillance), 214 (FISA pen register/ trap and trace authority), 215 (FISA access to
tangible items), 217 (interception of computer trespasser communications), 218
(purpose for FISA orders), 220 (nationwide service of search warrants for electronic
evidence), 223 (civil liability and discipline for privacy violations), and 225 (provider
immunity for FISA wiretap assistance).
The sunset provision suggests two types of interpretative challenges: (1) what is a
potential offense? (2) what is the impact of amendments enacted after the Act? This
report is an abridged version – without footnotes or chart – of CRS Report RL32186,
USA PATRIOT Act Sunset: Provisions That Expire on December 31, 2005.
Temporary Sections of Title II – Sections 201 and 202: Federal courts may authorize
wiretapping – the interception of wire, oral or electronic communications – for law
enforcement purposes in connection with the investigation of one or more specifically
designated, serious federal crimes (predicate offenses). Sections 201 and 202 temporarily
add crimes to this predicate offense list. Section 202 places felonious computer fraud and
abuse on the list; section 201 contributes crimes relating to chemical weapons, violence
committed against Americans overseas, weapons of mass destruction, multinational
terrorism, financial transactions with a country designated a sponsor of terrorism,
providing material support to a terrorist, and providing material support to a terrorist
organization.
Under the subsection 224(b) law enforcement officials may seek a wiretap order in
conjunction with an investigation of any of the offenses added to the predicate offense
list by sections 201 or 202, as long as the particular offense or potential offense that
begins or occurs before December 31, 2005. But what is a “potential offense” in this
context? It may mean a suspected offense or incomplete offense. The word “potential”
usually contemplates the incomplete or the unfulfilled or the undeveloped or unawakened
possibility rather than the suspect or uncertain. On the other hand, there is redundancy
in construing the term “potential offense” to mean an inchoate offense or an incomplete
offense or conduct with some but not all of the elements needed for a crime. The
exception already covered them as crimes that “began” before December 31, 2005.
P.L. 107-197 (Implementation of the International Convention for the Suppression
of Terrorist Bombings), perhaps inadvertently, adds the new crimes it establishes
(financing terrorism and bombing public buildings and places) to the temporary
subsection that section 201 creates.
Subsections 203(b) and 203(d): Evidence obtained through a court-ordered wiretap
for federal law enforcement purposes may be disclosed under limited circumstances, e.g.,
testimony in judicial proceedings or disclosure to other law enforcement officials for
official use. Prior to the Act, there was no explicit authorization for disclosure to
intelligence officials. Subsection 203(b) amends federal wiretap law to permit law
enforcement officials to disclose wiretap evidence to various federal officials (“law
enforcement, intelligence, protective, immigration, national defense [and] national
security official[s]”) when it involves foreign intelligence, counterintelligence, or foreign
intelligence information. Subsection 203(d) authorizes law enforcement officers to share
foreign intelligence, counterintelligence, and foreign intelligence information with the
same set of federal officials notwithstanding any other legal restriction.
The authority for disclosure under subsections 203(b) or 203(d) sunsets on December
31, 2005, unless either the foreign intelligence investigation or crime exception can be
claimed. The post-December 31, 2005 exceptions for law enforcement and foreign
intelligence investigations might be thought to limit the continued authority of subsections
203(b) and 203(d) to disclosures to law enforcement and intelligence officials but not to
allow disclosures to protective, immigration, national defense and national security
officials. At most, the extended authority can only apply to disclosures related to criminal
or foreign intelligence investigations.
The termination of authority under subsection 203(b) may be of little consequence,
since (A) the wiretap law’s disclosure and use prohibitions only outlaw the disclosure and
use of information gleaned from illegal wiretaps; they say nothing of the disclosure and
use of official purposes of information gathered from lawful interceptions; (B) the wiretap
law elsewhere authorizes disclosure of wiretap information to law enforcement officers;
and (C) the subsequently-passed Homeland Security Act authorizes disclosure, in separate
subsections, to a wide range of officials particularly when confronted with the more
serious foreign intelligence situations. The Homeland Security Act’s treatment of the
general law enforcement disclosure to intelligence authorities found in subsection 203(d)
is a bit different. It adopts language much like that which it provides in the wiretap
context of subsection 203(b). But rather than placing the amendment in a separate
subsection so that it survives the passing of the USA PATRIOT Act subsection on
December 31, 2005, it embeds the amendment in subsection 203(d) thereby suggesting
the amendment is intended to terminate with the rest of subsection 203(d).
Section 204: Section 204 is essentially a technical amendment. Prior wiretap law
makes it clear that the general prohibitions against wiretapping and against the acquisition
of communications records and stored electronic communications do not preclude foreign
intelligence gathering activities involving foreign communications systems. Section 204
amends the provision to add that the general prohibition against the use of pen registers
or trap and trace devices is likewise no impediment to such activities.
Section 206: Section 206 authorizes assistance for the installation and use of multi-
point FISA wiretaps. Prior to the Act, a FISA wiretap order could include directions that
a specifically identified communications carrier, landlord, or other individual assist in the
execution of the order. Section 206 amends FISA to permit a general command for
assistance where the target of the surveillance has taken steps to thwart the identification
of any specific person by “rapidly changing hotel accommodations, cell phones, Internet
accounts, etc, just prior to important meetings or communications.” The law enforcement
wiretap statute has a similar provision for law enforcement orders. The authority
continues in effect after December 31, 2005, with respect to any foreign intelligence
investigation initiated prior to that time. There have been no amendments related to
section 206 since its enactment.
Section 207: Before passage of the Act, FISA wiretap orders with the agent of a
foreign power as their target had a maximum duration of 90 days, and could be extended
in 90 day increments. FISA physical search orders and extensions were good for no more
than 45 days (but up to 1 year if a foreign power was the target). Section 207 amends the
time lines. FISA wiretap orders relating to the agent of foreign power may remain in
effect for up to 120 days and may be extended at 1 year intervals. As a general rule, FISA
physical search orders and extensions may be authorized for 90 days (unless they target
a foreign power), but orders with an agent of a foreign power as their target may be issued
for up to 120 days with extensions for up to 1 year, 50 U.S.C. 1824(d). The provisions
of section 207 have not been amended. They would appear to remain available for use
with respect to any foreign intelligence investigation predating December 31, 2005, but
otherwise to expire on that date.
Section 209: At one time, at least some courts felt that authorities needed a wiretap
order rather than a search warrant to seize voice mail. Section 209 treats voice mail like
e-mail, subject to seizure under a search warrant rather than a more demanding wiretap
order law.
The authority under section 209 terminates on December 31, 2005 except for
investigations relating to offenses or potential offenses begun or occurring before then.
The provisions of section 209 have not been substantively amended.
Section 212: Section 212 permits communications service providers to disclose
either customer records or the content of their customers’ communications in any
emergency situation. The Homeland Security Act repeals section 212’s provision
governing content disclosure in emergency situations and recasts it as a separate
provision, but says nothing of the emergency disclosure of customer records. As a
consequence, the authority to disclose customer records in an emergency situation
disappears on December 31, 2005 (except with respect to crimes or potential crimes
beginning or occurring before then), but the free standing emergency content disclosure
provision which replaced its section 212 predecessor remains in effect.

Section 214: Section 214 makes several adjustments in the FISA pen register/trap
and trace device procedures. FISA once permitted applications for a FISA pen register
or trap and trace device order to acquire information relevant to a foreign intelligence or
international terrorism investigation and upon the additional certification that the
telephone communications monitored would likely to be either (1) those of an
international terrorist or spy (“individual . .. engaged in international terrorism or
clandestine intelligence activities that . . . involve a violation of [U.S.] criminal laws”)
or (2) those of a foreign power or its agent relating to the criminal activities of an
international terrorist or spy.
Section 214 opens the FISA pen register/trap and trace device procedure to both wire
and electronic communications (e.g. telephone, e-mail, Internet communications). It
drops the requirement that the communications be those of international terrorists or spies
or be related to their activities. It adds the caveat that any investigation of a U.S. person
for which a order is secured “to protect against international terrorism or clandestine
intelligence activities” may not be conducted based solely on activities protected by the
first amendment to the Constitution. It adds this same caveat with respect to emergency
FISA pen register or trap and trace device use. Except for on-going investigations, the
FISA pen register/trap and trace device provisions revert to form on December 31, 2005.
No relevant amendments have been enacted occur since passage of the Act.
Section 215: FISA originally authorized a FISA court order (in a terrorism investigation
or an effort to gather foreign intelligence information) for FBI access to the business
records of hotels, motels, car and truck rental agencies, and storage rental facilities. An
application for such an order had to assert that there were “specific and articulable facts
giving reason to believe that the person to whom the records pertain [was] a foreign or an
agent of a foreign power.” Section 215 expands the authority to include not only business
records but any tangible item regardless of the business or individual holding the item and
upon the simple assertions that the records are sought in an effort to obtain foreign
intelligence (not based solely on the First Amendment protected activities of a U.S.
person) or in a terrorism investigation.
Section 215 expires on December 31, 2005, except with respect to on-going foreign
intelligence investigations, at which point the law reverts to the hotel-motel-car-rental
business records procedure that the predates the Act. There are no subsequent
amendments to the Act or to FISA that alter the consequences of that reversion, but the
impact of expiration may be mitigated by intelligence authorization act changes in the law
governing “national security letters” that provide access to a wide range of business
records than available under FISA after sunset.
Section 217: Federal wiretap law proscribes the interception of telephone, face to
face, or computer conversations, subject to certain narrow exceptions such as the issuance
of a wiretap order or the consent of one of the participants in the conversation. Computer
service providers occasionally discover that trespassers have established electronic
outposts within their systems. Section 217 allows providers to consent to law
enforcement interception of communications to and from these outposts. The authority
under section 217 expires on December 31, 2005. There have been no amendments
relevant to section 217 since its passage and the sunset exceptions for ongoing
intelligence investigations or for investigations of earlier crimes seem likely to be of
limited application here.