Wiretap Provisions Comparison Chart (Administration, House, Senate Versions, with ACLU comments)

Surveillance powers
Changes being considered by Congress

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. The chart below outlines the changes proposed by the ATA, and the ACLU's objections to those changes.. Also compared are the latest versions of anti-terrorism legislation being considered in the House and Senate.

The ACLU has five overall concerns about the surveillance provisions of the legislation being discussed:

• They would reduce or eliminate 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.
• They would 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 in this legislation to be applied far beyond what is commonly thought of by the term. Under the definition proposed by the Administration, 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 being considered are not limited to even the broad definition of terrorism investigations.
• The Congress is moving unnecessarily and irresponsibly quickly on these measures. 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 provisions being discussed are needed for the current terrorism investigations, so Congress should take 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 Surveillance

Current Law

Anti-Terrorism Act

House bill
(PATRIOT Act)

Senate bill
(USA Act)

ACLU Comments

Pen 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.
PP/TT may be used to collect "addressing" information on the Internet.
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.
Similar to PATRIOT.

On the Internet "addressing" is a meaningless term; PR/TT wiretaps inevitably capture "content." Neither House nor Senate defines what is content or provides for judicial oversight, leaving law enforcement officials (using methods like Carnivore) to decide for themselves what is content. more>

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.
Same as ATA
Same as ATA
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. more>

Nationwide subpoenas for electronic records
Orders 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.
Same as ATA
Same as ATA
Makes it difficult for judges to meaningfully monitor orders, or for small, remote ISPs to contest them. more>

Seizure of voice mail
Law 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.
Same as ATA
Same as ATA
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 content
Limits disclosure to law enforcement and investigative officer.
Permits broad disclosure to any executive branch employee.
Dissemination limited to federal law enforcement, intelligence, immigration, national security, protective agency, President, or VP as it relates to foreign intelligence.
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.

Admission into evidence of wiretap information from foreign governments
Not allowed.
Allows evidence if obtained without US participation or with US participation where interception would have been lawful in US.
Leaves current law unchanged
Leaves current law unchanged
ATA would encourage using foreign wiretaps to spy on Americans and undetectable collusion between US and other national intelligence agencies.

Interception of "computer trespasser" information
Not 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. Computer trespasser could be a customer who violates an ISP's terms of service.
Same as ATA
Same as ATA, except it bars customers or employees who violate terms of service contracts from being treated as "trespassers."
The provision is too broad. It removes judicial oversight from the process, and isn't limited to terrorism cases. Innocent targets will never know of surveillance. Except under Senate version, anyone who violates an ISP's or employer's "terms of service" can be surveilled. more>

Sunset provision
None
None
Surveillance provisions sunset December 31, 2003.
None
New surveillance powers have not received careful consideration. If they are to be approved, they should be sunsetted. New surveillance powers should be limited to terrorism.

Foreign Intelligence Surveillance Provisions

Type of surveillance

Current Law
(FISA)

Original Bush Administration Proposal
(Anti-Terrorism Act)

House bill
(PATRIOT Act)

Senate bill
(USA Act)

ACLU Comments

Multi-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.
Same as ATA
Same as ATA
Intercept is not limited to the target and will lead to interception of many innocent conversations not involving the target. more>

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 purpose, even if gathering evidence for the criminal case is the primary purpose.
FISA may be applied when foreign intelligence is "a significant purpose."
Same as Patriot.
Bypasses the 4th Amendment's probable cause standards by extending weaker intelligence-gathering wiretap standards to criminal searches. Even House & Senate's "significant purpose" language will encourage use of FISA rather than more privacy-protective domestic surveillance laws. more>

Sharing of foreign intelligence information with domestic law enforcement officials
Wiretap and grand jury information from intelligence cases may not normally be disclosed to non-relevant law enforcement officials.
Permits unfettered sharing of any "foreign intelligence information" with many federal officials not involved in law enforcement.
Same as ATA except limits disclosure for "performance of official duties."
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." more>

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 use of FISA PR/TT searches to the purpose of protecting against terrorism or foreign espionage, and bans their use based on activities protected by the First Amendment.
Essentially the same as Patriot.
Eliminates "agents of foreign powers" restriction that protects Americans from improper spying by intelligence agencies. Allows rampant use of PR/TT surveillance. more>

Business records/tangible things
Court order required for access to certain tangible items such as books, records, and papers.
Allows access to tangible things with an administrative subpoena instead of a court order when those things are "relevant" to an intelligence or terrorism investigation.
Retains the current requirement for a court order, but removes limits on the scope of the tangible items that can be released with one.
Same as Patriot.
ATA greatly expands access to records without any judicial review. All versions will expand 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.
Allows access to records on certification that they are "relevant" to a intelligence investigation; eliminates requirement that target be an agent of a foreign power. Overrides privacy protections for students in any "national security" matter.
Leaves current law unchanged.
Similar to ATA. 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.
Both ATA provisions allow 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 orders
Orders for physical surveillance expire in 45 days, electronic surveillance in 90 days.
Allows surveillance orders for non-citizens for up to 1 year (except green card holders).
Same as ATA
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. more>

Sunset provision
None
None
Surveillance provisions sunset Dec. 31, 2003.
None
New surveillance powers have not received careful consideration. If they are to be approved, they should be sunsetted. New surveillance powers should be limited to terrorism.

Last Updated - October 9, 2001