Assistance Programs Constrained in Burma

Burma is one of the world’s most impoverished and isolated countries. 1
With a per capita national income level below those of neighboring
Bangladesh and Laos, Burma suffers from high infant and maternal
mortality rates, epidemic-level HIV/AIDS infections, and widespread
production of illegal drugs. Burma’s isolation is largely the result of
policies pursued by a succession of authoritarian military regimes that
have ruled the country since 1962. According to the U.S. government,
these regimes are responsible for Burma’s mismanaged economy, human
rights abuses, use of forced labor, human trafficking, and military
campaigns against ethnic minority groups. During Burma’s last election in
1990, Burmese citizens voted to oust the regime in favor of the National
League for Democracy, led by Aung San Suu Kyi. 2 However, the regime
confined her and many other League members, and continued to rule
despite international condemnation of its actions. The regime’s repressive
policies have prompted the United States and other Western nations to
end their foreign aid programs to Burma and enact a range of sanctions.
In 2006, the Burmese regime announced new restrictions on international
organizations operating in Burma. These organizations have become
important sources of outside assistance to Burma’s approximately 54
million people as Burma has become increasingly isolated. 3 They include


the United Nations (UN), the International Committee of the Red Cross
(ICRC), and various international nongovernmental organizations. The
regime’s actions have raised concerns regarding the extent to which these
organizations will be able to continue their assistance efforts.
In this report, we (1) identify the principal efforts of the UN and other
international organizations to address Burma’s problems and (2) describe
the impact of the regime’s recent actions on the activities of these
international organizations. To address these issues, we examined
documents relating to programs conducted in Burma by the UN Country
Team (which includes 10 UN entities located in that country) and the
restrictions imposed on them by the Burmese regime. 4 In New York and
Washington, D.C., we met with officials of the U.S. Departments of State
(State) and the Treasury, the United Nations, the World Bank, and the
International Monetary Fund. We also met with the Burmese UN mission
in New York. In Rangoon, Burma, we met with officials of UN entities,
ICRC, and several international nongovernmental organizations who asked
that we not identify their organizations in this report. In addition, we met
with officials of the U.S. embassy and of the leading democratic
organization in Burma. In and near Rangoon and Bassein, Burma, we met
with recipients of UN assistance. We also traveled to Nay Pyi Taw
(Burma’s newly built capital) to meet with officials from the Burmese
Ministry of National Planning and Economic Development and the
Ministry of Health. In Bangkok, Thailand, we met with officials from three
additional UN entities that operate programs in Burma from Thailand, 5 as
well as with representatives of other donor nations.
We conducted our work from May 2006 through February 2007 in
accordance with generally accepted government auditing standards. More
details on our scope and methodology can be found in appendix I

international organization

INTERNATIONAL JOURNAL OF CIVIL SOCIETY LAW
Once again it is spring and against the backdrop of the warming weather, blooming flowers, and
singing birds we bring out our April issue, dedicated to student work. It contains three interesting
and stimulating articles by budding lawyers/scholars in the field of civil society law. We are
particularly pleased to offer articles by people from three different continents – from the Republic
of Georgia, from Israel (writing about the Arabic-speaking countries of the Middle East and
North Africa), and from the United States (writing about South Africa). Thus the approaches
taken and the issues addressed are quite diverse.

Shawn Fields is an American law student finishing his degree this May. His closely argued
analysis of the question of whether “restorative justice” theory supports the offering of
conditional amnesty, as was done in South Africa under the Truth and Reconciliation
Commission, draws on numerous sources of the theory as well as the theories behind amnesties
themselves. He suggests that among the reasons why “restorative justice fails as a satisfactory
justification for amnesty” when offered by a state are that it “embodies a private concept of
reparation and healing that cannot effectively be administered by the state;” that it “seeks
primarily to promote healing by meeting the needs of individual victims, while amnesty often
cannot meet these needs;” and that “the rights and needs of others in the community who were
not “directly” affected by the criminal act” are overlooked.

Noa Nof-Steiner, an Israeli lawyer who wrote the article as part of her studies for a Master’s
Degree in Public Policy from the University of Bologna, analyzes issues surrounding women’s
associations and the problems they face in six Muslim countries in the Middle East/North Africa.
Each country section contains a short introduction to the legal system and the status of women,
followed by an “in-depth analysis of the local law on associations and its effect on the operation
of women’s associations.” Her article is based on first-hand research into and information
obtained from Bahrain, Egypt, Iran, Iraq, Lebanon, and Yemen. Ms Nof-Steiner’s conclusion
that laws do not necessarily make for a vigorous and active civil society is not a surprising one,
but her important contribution to the discussion involves analysis of the situation regarding a
largely unexplored part of the sector in an under-researched region of the world.

Babutsa Pataraia’s article takes a look at the question of whether the current tax incentives
granted by the 2005 Tax Code to charitable organizations in the Republic of Georgia are
sufficient to make many organizations seek that status. Her well-researched article is the first to
look at this issue against a back-drop of what she calls an “undeveloped” charitable sector. Her
thesis is that it is a lack of good tax benefits that cause the sector’s underdevelopment, not other
socio-economic causes. And she proves the thesis by a painstaking and clear analysis of the
problems with the legislation. The extent to which her thesis will be borne out as organizations
become familiar with the new legislation cannot be foreseen. Nonetheless, some of the proposals
for immediate reforms should surely be heeded by the Georgian Parliament as it seeks to create a
stronger charitable sector in the country.

Our April issue also contains one Case Note not authored by a student, and we make it
available here so that our readers can have access to analysis of a recent case from Canada
involving the sweeping anti-terrorism legislation adopted in the wake of the events of September
11, 2001. Terrance S. Carter and Sean S. Carter argue that the “Khawaja Decision Offers Little
3

Relief for Charities.” Their piece is reprinted from the December 20, 2006, issue of the Carters
Professional Corporation Anti-Terrorism and Charity Law Alert No. 11 and is reprinted here with
permission.

We are also very grateful to Kumi Naidoo and Clare Doube for their Country Update on the
Crisis in Zimbabwe. This timely and important piece describes much about the situation in
general in terms of the multi-faceted crisis. It also speaks with the passion of people who have
spent a lot of time in Zimbabwe in recent months to show solidarity with the people facing the
repressive Mugabe regime's threats to their rights and their livelihoods. We were especially
touched, recently, to see a photo in the New York Times of our old friend Sekai Holland, whose
body, battered by thugs of Zanu-PF, was being loaded on a stretcher to be transported to hospital
in Johannesburg.

We would like to thank the student authors for submitting their articles to us for publication
and assisting us in the continuation of the fine tradition at ICCSL of publishing student work. We
would also like to thank Terrance and Sean Carter for continuing to allow us to reprint the
excellent work done by Carters. Finally, our special thanks this month go to the retiring Student
Editors – Kevin Schwartz, our Managing Editor, is graduating in May, as is Associate Editor
Alison Shea. It has been a real pleasure to work with them. We wish them well in their new
endeavors and look forward to staying in touch over the years as the IJCSL family continues to
expand every year. The new Editors will be introduced in July and October, when they will be
joining the staff.

law Faculties in egypt

faculty of law, helwan university
The Faculty of Law was established upon the presidential decree no. 23 of 1995



faculty of law, tanta university

english web site under construction


The Faculty Of Law zagaziqk university

Faculty Of Law - Zagazig - Sharkia Gov. - Arab Republic Of Egypt

faculty of law, alminofia university

It was established in 1987. It is noteworthy to mention that the faculty has introduced the Open Education program following the credit hours system during the current academic year 2007-2008.




faculty of law , cairo university


Alexandria - Alexandria University - Faculty of Law
The idea of establishing a University in Alexandria was conceived to accomodate expansion in higher education and official encouragement of secondary school graduates to seek professional degrees. As a result, the Faculties of Arts, Law and Engineering of Cairo university opened extension branches in Alexandria in 1938. These, together with the Faculties of Commerce, Science, Medicine and Agriculture formed the nucleus of the new university.

Assiut - Assiut University Faculty of Law
Thousands of students are enrolled annually in the college for studies that qualify for L. L. B., Diploma Masters and PhDs. Our faculty comprises four departments: Private law department. Public law department. Finance law department. Islamic law department.

Law Library
Cairo - Ain Shams University - Facutly of Law
Abbassia 11566, Cairo, Phone: 202 683 1231
Ain shams university established in 1950, it is the third oldest university in Egypt, the university includes 15 faculties and 2 high institutes. It includes more than 180,000 students, 5,000 staff members, 4,000 assistant staff and more than 100 centers and special units.

Cairo - Al-Ashar University - Faculty of Islamic Jurisprudence and Law
Yosief Abbas Street, Cairo, Phone: +20 2 262 3274

Cairo - American University in Cairo (AUC) - Law Department
113 Kasr El Aini St., P.O. Box 2511, Cairo 11511, Phone: +20 2 2791 2202 / 2229 / 2230
The Law Department at the American University in Cairo (AUC) has two graduate legal programs: the Master of Laws (LL.M.) Degree Program in International and Comparative Law, and the Masters of Arts (MA) Degree Program in Human Rights. The Department is located in Cairo, Egypt. Students come from the United States, Europe, and Africa, in addition to Egypt and the Middle East. The language of instruction is English. Established in September 2005, the department has over 80 students, who participate in regional as well as international moot courts and conferences, such as the African Human Rights Moot Court competition and the annual Law and Society conference. The current chair is Prof. Lama Abu-Odeh, who is visiting from Georgetown University. The former chair was Prof. Chantal Thomas, who was visiting from Cornell University. Prof. Amr Shalakany is the director of the LL.M. Program, and Prof. Elna Sondergaard directs the International Human Rights Law Program.

Law Library
Giza - Cairo University - Faculty of Law Orman
5th Ahmed Zewail st., Giza, Phone: +20 2 333 55356
Cairo University is a huge educational institution which serves more than 160 thousand students annually to meet the requirements of the Egyptian community and its development. The University’s Administration has been engaged upon establishing specialized training centers in all fields of knowledge that are both current and relevant to different levels of the society.

Mansoura - Mansoura Faculty of Law

Islamic Commercial Law

The numerous tragic events of the past few years, such as the terrorist attacks on the Twin Towers in
New York, Bali, Madrid and London, the invasions of Afghanistan and Iraq, the ongoing violence in
those two countries and the attack on Lebanon, have created an interest in Islam generally, and more
particularly in the phenomenon known as the ‘Islamic revival’. One result of this new interest is an
awareness of the role and importance of law in the life of Muslims.

‘Islamic law’ (in inverted commas because, as explained below, the term itself is problematic) covers
all aspects of human behaviour. It is much wider than the Western understanding of ‘law’, and
governs ‘the Muslim’s way of life in literally every detail, from political government to the sale of
real property, from hunting to the etiquette of dining, from sexual relations to worship and prayer.’ 2
Notably for our purposes it also regulates commercial transactions. It follows that the Islamic
conceptual framework is quite unlike that of Christianity in which law is secular. 3 There is no
Christian law of contract, for example, no Christian law of property, whereas bodies of law dealing
with such matters do exist in the shari’a. So, although it would make no sense to refer to ‘Christian
commercial law’, it is meaningful to speak of ‘Islamic Commercial Law’. 4

Various issues need to be explored before we proceed to a consideration of that law.
Shari’a Commercial Law

‘Commercial law’ is an imprecise term. In comparisons as between Western systems, the primary
linguistic difference is that the common law term tends to cover transactions rather than institutions
such as partnerships and companies, whereas civilian law equivalents encompass both. Another
striking difference, which cannot be categorised according to the common law/civilian law divide, is
that between systems which have a formal distinction between commercial and non-commercial law
and those which do not. 8

The considerations do not apply to the shari’a. The distinction between transactions and institutions
is not relevant because, although the shari’a does have contracts which resemble our partnerships, it
has practically no concept of legal personality. 9 As regards the distinction between commercial and
non-commercial law, the jurists did, naturally, categorise the shari’a, but the principal divisions were
akhlaq (morals), ibada (religious observance) and mu’amalat (transactions) and, although they did
recognise the difference between commercial and non-commercial transactions to some extent, 10 this
acknowledgement did not have anything like the same nature or significance as the Western
divide. 11 In the shari’a, the same principles of morality apply to all situations; one should not behave
in one way at home and another way in the office. The shari’a attitude has deep roots, for it reflects
the Prophet’s many years of experience as a trader before his prophetic mission. This uniformity of
treatment is a particularly important aspect of the subject because it gives rise to some major
differences between the shari’a and Western commercial law regimes. The latter, whether or not they
contain a formal distinction, work on the assumption that different attitudes are needed for
commercial as opposed to non-commercial transactions, since business people need less protection
than ordinary individuals and different moral standards apply.

Accordingly, any definition of ‘Shari’a commercial law’ (one might be: ‘all those parts of the shari’a
relating to the exchange of goods and services with the aim of profit’), must be read in the light of the
considerations outlined above.
Development and Eclipse

But what is the shari’a?

The question is perhaps best answered by a brief historical overview. The Prophet Muhammad
received his first divine message in approximately 610 AD, having up to that date been a highly
respected merchant and arbitrator. The message was followed by other revelations, which were
gathered together after his death in the collection now known as the Koran, literally ‘reader’, from
the root ‘qr’’, to read. The Koran contains a considerable number of verses with legal significance, but
is far from being a comprehensive code. It is supplemented by accounts of the Prophet’s words and
deeds, his practice or ‘sunna’, recorded in short narratives called ‘hadith’, the English translation of
which is ‘Tradition’. Even this combination, though, does not provide enough detail to deal with all
commonly occurring problems, so the jurists devised rules to fill the gaps using various techniques,
notably qiyas (analogy) and ijma’ (consensus; at first that of the whole community, then that of the
jurists). Various other concepts were of relevance, of these ‘urf (custom) was of great significance in
commercial transactions.

One concept in particular, ‘ijtihad’, should be mentioned here. Literally ‘effort’, in a legal sense it can
be defined as ‘independent judgment in a legal or theological question, based on the interpretation
and application of the 4 [sources of the shari’a], as opposed to taqlid [following established rules and
doctrine]’. 12 In other words, it is a human activity which interprets the will of Allah as manifested in
the Koran and the Sunna by the use of established juristic techniques. That activity can only be
properly undertaken by someone with a deep knowledge of the shari’a, someone who is ‘mujtahid’. It
is also used to denote creativity in the shari’a, as in the (now somewhat discredited) idea of the
‘closing of the gate of ijtihad’, and more especially in recent time, the adaptation of the shari’a to
modern conditions. 13

The law which emerged was ‘the law of the body politic’, 14 but it was to a significant extent devised,
and almost entirely managed and interpreted, by jurists working within madhahib (singular madhhab,
rendered in English as ‘school’). The madhahib were very largely independent from the ruler who
was, in principle and usually in practice, subject to the law, not its generator or controller. ‘Never
could the Islamic ruling elite, the body politic, determine what the law was.’ 15 Indeed, the body
politic was regarded as corrupt. ‘If Islamic law had represented to Muslims the best of religion and
religious life, then the state stood for the worst of worldly temptation [and] corruption’. 16 Naturally,
interaction and accommodation did occur between the jurists and the ruler, but nonetheless the
independent and dominant position of the shari’a do constitute a major difference between it and the
modern Western idea of law.

On the commercial side, the Muslim conquests created a vast area in which and out of which a great
deal of trading activity took place. It was crossed by important trade routes and, for most of the very
long period of classical Islam, there was a favourable economic environment. ‘Industry was
developed, manpower consisted of free workers, many goods were produced for export and large
quantities of coins were in circulation.’ 17 Gold from the Western Sudan came into the Muslim world,
and circulated freely and there was: ‘intense [banking] activity’, in which bankers: ‘performed all
banking operations: the exchange of money, loans, and the sale of assignments of credit’. 18 As a
consequence, the jurists developed a system which, it seems, (although, as we shall see, the issue is
disputed) 19 served the needs of participants well. However, the Muslim world was eventually
overtaken by the West in areas such as technology, warfare and commercial techniques. This new
superiority was forcefully brought home by a long series of events, including notably the conquest of
Egypt by the French in 1798, the European domination of trade (symbolised for many commentators
by the Treaty of Balta Liman in 1838 between the United Kingdom and the Ottoman Empire) 20 and
generally the political domination of the region by European powers.

One of the consequences was a wish to ‘modernise’, in other words to imitate and adopt those ideas
and institutions which seemed to have given Europe the advantage. The modernisation movement
led to the shari’a being ‘abandoned with astonishing speed and completeness’ in all areas except
family law; 21 shari’a commercial law disappeared from almost the entire region, the one exception
being, for a considerable period, the Arabian peninsula and, more recently, Saudi Arabia alone, and
Western commercial law was adopted in its place.

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.