Surveillance Powers: A Chart

Surveillance Powers: A Chart

On September 19, only eight days after the tragic terrorist attacks on New York and Washington, the Bush Administration unveiled its proposed Anti-Terrorism Act (ATA), legislation that included many changes to the nation's current surveillance laws. Just five weeks later, Congress passed in final form what was now called the "USA/Patriot Act," and and President Bush signed it into law. The chart below lists the previous state of the law, how it is changed by the anti-terrorism bill, and capsule ACLU comments on those changes.

The ACLU has five overall concerns about the surveillance provisions of the law:

• It reduces or eliminates the role of judges in ensuring that law enforcement wiretapping is conducted legally and with proper justification. There is no reason why the requirement to get a court order for surveillance should slow down the investigation of suspects for which there is evidence of terrorist activities.
• It threatens to dangerously erode the longstanding distinction between domestic law enforcement and foreign intelligence collection, which protects Americans from being spied upon by their own intelligence agencies, as happened during the Cold War.
• The definition of "terrorism" is too broad, permitting the special surveillance powers granted by this law to be applied far beyond what is commonly thought of by the term. Under the new definition, even acts of simple civil disobedience could lead organizations such as People for the Ethical Treatment of Animals (PETA) to become targets of "terrorist" investigations.
• Many of the expansions in surveillance authority contained in the law are not limited to even the broad definition of terrorism investigations.

Unfortunately, Congress moved unnecessarily and irresponsibly quickly on this legislation. It takes a great deal of time to deal with complex issues such as how to apply wiretap law to the Internet, and to think through all the possible unintended consequences of legislative language. Few of the law's provisions were needed for the current terrorism investigations, so Congress should have taken the time to do it right.

Security and civil liberties do not have to be at odds. Law enforcement authorities already have great leeway under current law to investigate suspects in terrorist attacks - including broad authority to monitor telephone and Internet communications (in fact, under current law, judges have rejected only three federal or state criminal wiretap requests in the last decade).

Domestic Surveillance Provisions

Type of SurveillancePrevious LawNew law under USA/Patriot ActACLU CommentsPen Register/ Trap Trace (PR/TT) authority for the Internet Allows for the interception of numbers dialed on a telephone line based only upon a law enforcement assertion that it would be "relevant" to an investigation.PR/TT may be used to collect "addressing" information on the Internet, but not the content of communications. "Content" is not defined. Judges have no power to reject a PP/TT wiretap. Wiretapping equipment must be configured to exclude content and ISPs cannot be required to use equipment designed to allow surveillance. Law enforcement must report back to the judge data on how the wiretap was configured and used.

On the Internet "addressing" is a meaningless term; PR/TT wiretaps inevitably capture "content." The USA Act does not define what is content, leaving law enforcement officials (using methods like Carnivore) to decide for themselves what is content. The provision requiring a report back to the judge is an extremely modest form of judicial oversight. By mentioning Carnivore, that provision could be read as an oblique authorization of the technology which otherwise lacks statutory justification.

Nationwide PR/TT (roving wiretaps)A PR/TT warrant applies only within jurisdiction of the Court that issued it. PR/TT orders issued by one judge can be made valid anywhere in the United States. Marginalizes the judiciary. Allows for blank warrants explicitly barred by the Constitution. Makes it difficult for judges to meaningfully monitor orders, or for small, remote ISPs to contest them.Nationwide subpoenas for electronic recordsOrders apply only within geographic jurisdiction of the Court approving the surveillance.Allows courts to issue orders for seizure of electronic evidence in storage, which may include content, that apply to any service provider nationwide. Makes it difficult for judges to meaningfully monitor orders, or for small, remote ISPs to contest them .Seizure of voice mailLaw unclear but most believe law enforcement must prove probable cause to a judge.Stored voice mail messages can be obtained under same terms as stored email: by warrant or by subpoena if more than 180 days old. Extends the same inadequate standards that currently govern e-mail to voice mail, which is content and should be subject to the same standard as a wiretap. Dissemination of wiretap information, including intercept contentLimits disclosure to law enforcement and investigative officer.Allows disclosure of foreign intelligence to intelligence, defense, immigration, and protective officials in performance of their duties. Unauthorized disclosure subject to penalties of Privacy Act.Disclosure not limited to terrorism cases. May be abused for political purposes. Disclosure to intelligence agencies about U.S. citizens effectively puts the CIA back in the business of spying on Americans. Interception of "computer trespasser" informationNot permitted by government without complying with wiretap law.Permits interception without notice to the target of communications of a broadly defined "computer trespasser" with consent of owner/operator of a protected computer. This overbroad provision removes judicial oversight from the process, and isn't limited to terrorism cases. Innocent targets would never know of surveillance, and libraries and Internet cafes could authorize blanket wiretapping of their customers. Sunset provisionNoneSurveillance provisions sunset December 31, 2005. Sunset provisions apply to some but not all of the surveillance provisions in the USA/Patriot Act.

Foreign Intelligence Surveillance Provisions

Type of surveillancePrevious Law New law under USA/Patriot ActACLU CommentsMulti-point authority (roving wiretaps)Surveillance orders apply only to one specific Internet Service Provider (ISP).Allows surveillance to follow a person wherever they go or may go. Intercept is not limited to the target and will lead to interception of many innocent conversations not involving the target.Criminal evidence uncovered using an intelligence (FISA) wiretap. FISA wiretaps may only be used when foreign intelligence gathering is the primary or sole purpose. If a FISA wiretap yields evidence of crime and investigation of that crime becomes primary purpose of wiretap, criminal wiretap standards must be applied. Allows lower standards of FISA to be used whenever foreign intelligence is a "significant" purpose, even if gathering evidence for the criminal case is the primary purpose. Bypasses the 4th Amendment's probable cause standards by extending weaker intelligence-gathering wiretap standards to criminal searches. Even the law's "significant purpose" language will encourage use of FISA rather than more privacy-protective domestic surveillance laws.Sharing of foreign intelligence information with domestic law enforcement officialsWiretap and grand jury information from intelligence cases may not normally be disclosed to non-relevant law enforcement officials.Allows disclosure of foreign intelligence (and grand jury) information to intelligence, defense, immigration, and protective officials for "performance of official duties." Makes unauthorized disclosure subject to penalties.No definition or limitation of "foreign intelligence." No judicial authorization required. Puts CIA back in the business of collecting information about Americans. Open to abuse against political "enemies."Pen register and trap and trace authority (PR/TT)PR/TT only allowed when the government proves the surveillance target is "an agent of a foreign power."Deletes "agent of a foreign power" requirement and allow use of PR/TT when government asserts (not proves) that it is "relevant" to an ongoing intelligence investigation. Limits such searches to the purpose of protecting against terrorism or foreign espionage, and bans their use based on activities protected by the First Amendment. Eliminates "agents of foreign powers" restriction that protects Americans from improper spying by intelligence agencies. Allows rampant use of PR/TT surveillance.Business records/tangible thingsCourt order required for access to certain tangible items such as books, records, and papers.Retains the current requirement for a court order, but removes limits on the scope of the tangible items that can be released with one. Expands the replacement of domestic laws by FISA to gain access to records.Access to citizens' educational, credit, consumer and communications records.Banking, credit and telecommunications records may be accessed only if the consumer is an agent of a foreign power. The release of information on students is generally prohibited.Amends Federal communications and privacy laws to let FBI access records without cause based on a mere certification of relevancy to foreign intelligence. No requirement that target be an agent of a foreign power. Amends student privacy laws to allow Dept. of Justice to seek warrants for educational records related to terrorism. Allows sweeping access to sensitive information about Americans under a rationale of intelligence. Such access should be subject to a showing that the subject is an agent of foreign power and that an investigation involves terrorism. Time limits on surveillance ordersOrders for physical surveillance expire in 45 days, electronic surveillance in 90 days.Initial electronic surveillance orders expire in 90 to 120 days, with extensions of up to a year; physical search orders last 45-90 days. Severely limits FISA Court's power to ensure that surveillance is continued only when productive.Sunset provisionNoneSurveillance provisions sunset Dec. 31, 2005. Sunset provisions apply to some but not all of the surveillance provisions in the USA/Patriot Act.