Section summary of the USA PATRIOT Act, Title II

The following is a section summary of the USA PATRIOT Act, Title II. The USA PATRIOT Act

USA PATRIOT Act

The USA PATRIOT Act is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001...

was passed by the United States

United States

The United States of America is a federal constitutional republic comprising fifty states and a federal district...

Congress

United States Congress

The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

in 2001 as a response to the September 11, 2001 attacks

September 11, 2001 attacks

The September 11 attacks The September 11 attacks The September 11 attacks (also referred to as September 11, September 11th or 9/119/11 is pronounced "nine eleven". The slash is not part of the pronunciation...

. Title II: Enhanced Surveillance Procedures

USA PATRIOT Act, Title II

The USA PATRIOT Act was passed by the United States Congress in 2001 as a response to the September 11, 2001 attacks. It has ten titles, each containing numerous sections. Title II: Enhanced Surveillance Procedures granted increased powers of surveillance to various government agencies and bodies...

gave increased powers of surveillance

Surveillance

Surveillance is the monitoring of the behavior, activities, or other changing information, usually of people. It is sometimes done in a surreptitious manner...

to various government agencies and bodies. This title has 25 sections, with one of the sections (section 224) containing a sunset clause which sets an expiration date, 31 December 2005, for most of the title's provisions. On 22 December 2005, the sunset clause expiration date was extended to 3 February 2006.

Title II contains many of the most contentious provisions of the act. Supporters of the Patriot Act claim that these provisions are necessary in fighting the War on Terrorism

War on Terrorism

The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...

, while its detractors argue that many of the sections of Title II infringe upon individual

Individual rights

Group rights are rights held by a group rather than by its members separately, or rights held only by individuals within the specified group; in contrast, individual rights are rights held by individual people regardless of their group membership or lack thereof...

and civil rights

Civil rights

Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...

.

The sections of Title II amend the Foreign Intelligence Surveillance Act of 1978 and its provisions in 18 U.S.C.

United States Code

The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...

, dealing with "Crimes and Criminal Procedure

Criminal procedure

Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...

". It also amends the Electronic Communications Privacy Act of 1986. In general, the Title expands federal agencies' powers in intercepting, sharing, and using private telecommunications, especially electronic communications, along with a focus on criminal investigations by updating the rules that govern computer crime investigations. It also sets out procedures and limitations for individuals who feel their rights have been violated to seek redress, including against the United States government. However, it also includes a section that deals with trade sanctions against countries whose government supports terrorism, which is not directly related to surveillance issues.

Sections 201 & 202: Intercepting communications

Two sections dealt with the interception of communications by the United States government.

Section 201 is titled Authority to intercept wire, oral, and electronic communications relating to terrorism. This section amended (Authorization for interception of wire, oral, or electronic communications) of the United States Code

United States Code

The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...

. This section allows (under certain specific conditions) the United States Attorney General

United States Attorney General

The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...

(or some of his subordinates) to authorize a Federal judge to make an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation

Federal Bureau of Investigation

The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...

(FBI), or another relevant U.S. Federal agency.

The Attorney General's subordinates who can use Section 201 are: the Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, any acting Assistant Attorney General, any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division who is specially designated by the Attorney General.

The amendment added a further condition which allowed an interception order to be carried out. The interception order may now be made if a criminal violation is made with respect to terrorism

Terrorism

Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...

(defined by ):

the use of weapons of mass destruction
Weapons of mass destruction
A weapon of mass destruction is a weapon that can kill and bring significant harm to a large number of humans and/or cause great damage to man-made structures , natural structures , or the biosphere in general...

(defined by ), or
providing financial aid to facilitate acts of terrorism (defined by ), or
providing material support to terrorists (defined by ), or
Providing material support or resources to designated foreign terrorist organizations (defined by ).

Note: the legislation states that title 18, section 2516(1), paragraph (p) of the United States Code was redesignated (moved) to become paragraph (q). This paragraph had been previously redesignated by two other pieces of legislation: the Antiterrorism and Effective Death Penalty Act of 1996

Antiterrorism and Effective Death Penalty Act of 1996

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, is an act of Congress signed into law on April 24, 1996...

and by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of vastly changed the immigration laws of the United States.This act states that if an immigrant has been unlawfully present in the United States for 180 days but less than 365 days...

(see section 201(3)).

Section 202 is titled Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses, and amended the United States Code to include computer fraud and abuse in the list of reasons why an interception order may be granted.

Section 203: Authority to share criminal investigative information

Section 203 (Authority to share criminal investigation information) modified the Federal Rules of Criminal Procedure

Federal Rules of Criminal Procedure

The Federal Rules of Criminal Procedure are the procedural rules that govern how federal criminal prosecutions are conducted in United States district courts, the general trial courts of the U.S. government. As such, they are the companion to the Federal Rules of Civil Procedure...

with respect to disclosure of information before the grand jury

Grand jury

A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...

(Rule 6(e)). Section 203(a) allowed the disclosure of matters in deliberation by the grand jury, which are normally otherwise prohibited, if:

a court orders it (before or during a judicial proceeding),
a court finds that there are grounds for a motion to dismiss an indictment
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...

because of matters before the Grand Jury,
if the matters in deliberation are made by an attorney for the government to another Federal grand jury,
an attorney for the government requests that matters before the grand jury may reveal a violation of State criminal law,
the matters involve foreign intelligence or counterintelligence or foreign intelligence information. Foreign intelligence and counterintelligence was defined in section 3 of the National Security Act of 1947
National Security Act of 1947
The National Security Act of 1947 was signed by United States President Harry S. Truman on July 26, 1947, and realigned and reorganized the U.S. Armed Forces, foreign policy, and Intelligence Community apparatus in the aftermath of World War II...

, and "foreign intelligence information" was further defined in the amendment as information about:
1. an actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
2. sabotage or international terrorism by a foreign power or an agent of a foreign power; or
3. clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of foreign power; or
4. information about a foreign power or foreign territory that relates to the national defense or the security of the United States or the conduct of the foreign affairs of the United States.'.
5. information about non-U.S. and U.S. citizens

203(a) gave the court the power to order a time within which information may be disclosed, and specified when a government agency may use information disclosed about a foreign power. The rules of criminal procedure now state that "within a reasonable time after such disclosure, an attorney for the government shall file under seal a notice with the court stating the fact that such information was disclosed and the departments, agencies, or entities to which the disclosure was made."

Section 203(b) modified , which details who is allowed to learn the results of a communications interception, to allow any investigative or law enforcement officer, or attorney for the Government to divulge foreign intelligence, counterintelligence or foreign intelligence information to a variety of Federal officials. Specifically, any official who has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived from this could divulge this information to any Federal law enforcement, intelligence, protective, immigration, national defense, or national security official. The definition of "foreign intelligence" was the same as section 203(a), with the same ability to define "foreign intelligence" to be intelligence of a non-U.S. and U.S. citizen. The information received must only be used as necessary in the conduct of the official's official duties.

The definition of "foreign intelligence information" is defined again in Section 203(d).

Section 203(c) specified that the Attorney General must establish procedures for the disclosure of information due to (see above), for those people who are defined as U.S. citizens.

Section 204: Limitations on communication interceptions

Section 204 (Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communication) removed restrictions from the acquisition of foreign intelligence information from international or foreign communications. It was also clarified that the Foreign Intelligence Surveillance Act of 1978

Foreign Intelligence Surveillance Act of 1978

America's Foreign Intelligence Surveillance Act of 1978 is an Act of Congress, , which prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" America's Foreign Intelligence...

should not only be the sole means of electronic surveillance for just oral and wire intercepts, but should also include electronic communication.

Section 205: Employment of translators by the FBI

Under section 205 (Employment of translators by the Federal Bureau of Investigation), the Director of the Federal Bureau of Investigation is now allowed to employ translators to support counterterrorism investigations and operations without regard to applicable Federal personnel requirements and limitations. However, he must report to the House Judiciary Committee and Senate Judiciary Committee the number of translators employed and any legal reasons why he cannot employ translators from federal, state, or local agencies.

Section 206: Roving surveillance authority

The Foreign Intelligence Surveillance Act of 1978 allows an applicant access to all information, facilities, or technical assistance necessary to perform electronic surveillance on a particular target. The assistance given must protect the secrecy of and cause as little disruption to the ongoing surveillance effort as possible. The direction could be made at the request of the applicant of the surveillance order, by a common carrier

Common carrier

A common carrier in common-law countries is a person or company that transports goods or people for any person or company and that is responsible for any possible loss of the goods during transport...

, landlord, custodian or other specified person. Section 206 (Roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978) amended this to add:

or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a particular person.

This allows intelligence agencies to undertake "roving" surveillance: they do not have to specify the exact facility or location where their surveillance will be done. Roving surveillance was already specified for criminal investigations under , and section 206 brought the ability of intelligence agencies to undertake such roving surveillance into line with such criminal investigations. However, the section was not without controversy, as James X. Dempsey, the Executive Director of the Center for Democracy & Technology, argued that a few months after the Patriot Act was passed the Intelligence Authorization Act was also passed that had the unintended effect of seeming to authorize “John Doe” roving taps — FISA orders that identify neither the target nor the location of the interception (see The Patriot Debates, James X. Dempsey debates Paul Rosenzweig on section 206).

Section 207: Duration of FISA surveillance on agents of a foreign power

Previously FISA only defined the duration of a surveillance order against a foreign power (defined in ) . This was amended by section 207 (Duration of FISA surveillance of non-United States persons who are agents of a foreign power) to allow surveillance of agents of a foreign power (as defined in section ) for a maximum of 90 days. Section 304(d)(1) was also amended to extend orders for physical searches from 45 days to 90 days, and orders for physical searches against agents of a foreign power are allowed for a maximum of 120 days. The act also clarified that extensions for surveillance could be granted for a maximum of a year against agents of a foreign power.

Section 208: Designation of judges

Section 103(A) of FISA was amended by Section 208 (Designation of judges) of the Patriot Act to increase the number of federal district court

United States district court

The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...

judges who must now review surveillance orders from seven to 11. Of these, three of the judges must live within 20 miles (32.2 km) of the District of Columbia.

Section 209: Seizure of voice-mail messages pursuant to warrants

Section 209 (Seizure of voice-mail messages pursuant to warrants) removed the text "any electronic storage of such communication" from title 18, section 2510 of the United States Code. Before this was struck from the Code, the U.S. government needed to apply for a title III wiretap order before they could open voicemails, however now the government only need apply for an ordinary search. Section 2703, which specifies when a "provider of electronic communication services" must disclose the contents of stored communications, was also amended to allow such a provider to be compelled to disclose the contents via a search warrant, and not a wiretap order. According to Vermont

Vermont

Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England...

senator Patrick Leahy

Patrick Leahy

Patrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...

, this was done to "harmonizing the rules applicable to stored voice and non-voice (e.g., e-mail) communications".

Section 210 & 211: Scope of subpoenas for records of electronic communications

The U.S. Code specifies when the U.S. government may require a provider of an electronic communication service to hand over communication records. It specifies what that provider must disclose to the government, and was amended by section 210 (Scope of subpoenas for records of electronic communications) to include records of session times and durations of electronic communication as well as any identifying numbers or addresses of the equipment that was being used, even if this may only be temporary. For instance, this would include temporarily assigned IP address

IP address

An Internet Protocol address is a numerical label assigned to each device participating in a computer network that uses the Internet Protocol for communication. An IP address serves two principal functions: host or network interface identification and location addressing...

es, such as those established by DHCP.

Section 211 (Clarification of scope) further clarified the scope of such orders. (Section 631 of the Communications Act of 1934

Communications Act of 1934

The Communications Act of 1934 is a United States federal law, enacted as Public Law Number 416, Act of June 19, 1934, ch. 652, 48 Stat. 1064, by the 73rd Congress, signed by President Franklin D. Roosevelt, codified as Chapter 5 of Title 47 of the United States Code, et seq. The Act replaced the...

) deals with the privacy granted to users of cable TV. The code was amended to allow the government to have access to the records of cable customers, with the notable exclusion of records revealing cable subscriber selection of video programming from a cable operator.

Section 212: Emergency disclosure of electronic communications

Section 212 (Emergency disclosure of electronic communications to protect life and limb) amended the US Code to stop a communications provider from providing communication records (not necessarily relating to the content itself) about a customer's communications to others. However, should the provider reasonably believe that an emergency involving immediate danger of death

Death

Death is the permanent termination of the biological functions that sustain a living organism. Phenomena which commonly bring about death include old age, predation, malnutrition, disease, and accidents or trauma resulting in terminal injury....

or serious physical injury to any person then the communications provider can now disclose this information. The act did not make clear what "reasonably" meant.

A communications provider could also disclose communications records if:

a court orders the disclosure of communications at the request of a government agency
the customer allows the information to be disclosed
if the service provider believes that they must do so to protect their rights or property.

This section was repealed by the Homeland Security Act of 2002 — this act also created the Homeland Security Department — and was replaced with a new and permanent emergency disclosure provision.

Section 213: Delayed search warrant notification

Section 213 (Authority for delaying notice of the execution of a warrant) amended the US Code to allow the notification of search warrants to be delayed.
This section has been commonly referred to as the "sneak and peek" section, a phrase originating from the FBI and not, as commonly believed, from opponents of the Patriot Act. The U.S. government may now legally search and seize property that constitutes evidence of a United States criminal offense without immediately telling the owner. The court may only order the delayed notification if they have reason to believe it would hurt an investigation — delayed notifications were already defined in — or, if a search warrant specified that the subject of the warrant must be notified "within a reasonable period of its execution," then it allows the court to extend the period before the notification is given, though the government must show "good cause". If the search warrant prohibited the seizure of property or communications, then the search warrant could then be delayed.

Before the Patriot Act was enacted, there were three cases before the United States district court

United States district court

s: United States v. Freitas, 800 F.2d 1451 (9th Cir. 1986); United States v. Villegas, 899 F.2d 1324 (2d Cir. 1990); and United States v. Simons, 206 F.3d 392 (4th Cir. 2000). Each determined that, under certain circumstances, it was not unconstitutional

United States Constitution

The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

to delay the notification of search warrants.

Section 214: Pen register and trap and trace authority

FISA was amended by section 214 (Pen register and trap and trace authority under FISA) to clarify that pen register and trap and trace surveillance can be authorised to allow government agencies to gather foreign intelligence information. Where the law only allowed them to gather surveillance if there was evidence of international terrorism, it now gives the courts the power to grant trap and traces against:

non-U.S. citizens,
those suspected of being involved with international terrorism,
those undertaking clandestine intelligence activities

Any investigation against U.S. citizens must not violate the First Amendment to the United States Constitution

First Amendment to the United States Constitution

The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

Section 215: Access to records and other items under FISA

This section is commonly referred to as the "library records" provision because of the wide range of personal material that can be investigated.

FISA was modified by section 215 (Access to records and other items under the Foreign Intelligence Surveillance Act) to allow the Director of the FBI (or an official designated by the Director, so long as that official's rank is no lower than Assistant Special Agent in Charge) to apply for an order to produce materials that assist in an investigation undertaken to protect against international terrorism or clandestine intelligence activities. The act specifically gives an example to clarify what it means by "tangible things": it includes "books, records, papers, documents, and other items".

It is specified that any such investigation must be conducted in accordance with guidelines laid out in Executive Order 12333

Executive Order 12333

On December 4, 1981 President Ronald Reagan signedExecutive Order 12333,an Executive Order intended toextend powers and responsibilities of US intelligence agencies and direct the leaders of U.S...

(which pertains to United States intelligence activities). Investigations must also not be performed on U.S. citizens who are carrying out activities protected by the First Amendment to the Constitution of the United States.

Any order that is granted must be given by a district court judge or by a magistrate judge

United States magistrate judge

In the United States federal courts, magistrate judges are appointed to assist United States district court judges in the performance of their duties...

who is publicly designated by the Chief Justice of the United States

Chief Justice of the United States

The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...

to allow such an order to be given. Any application must prove that it is being conducted without violating the First Amendment rights of any U.S. citizens. The application can only be used to obtain foreign intelligence information not concerning a U.S. citizen or to protect against international terrorism or clandestine intelligence activities.

This section of the PATRIOT Act is controversial because the order may be granted ex parte
Ex parte
Ex parte is a Latin legal term meaning "from one party" .An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present. In Australian, Canadian, U.K., Indian and U.S...

, and once it is granted — in order to avoid jeopardizing the investigation — the order may not disclose the reasons behind why the order was granted.

The section carries a gag order

Gag order

A gag order is an order, sometimes a legal order by a court or government, other times a private order by an employer or other institution, restricting information or comment from being made public.Gag orders are often used against participants involved in a lawsuit or criminal trial...

stating that "No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section". Senator Rand Paul

Rand Paul

Randal Howard "Rand" Paul is the junior United States Senator for Kentucky. He is a member of the Republican Party. A member of the Tea Party movement, he describes himself as a "constitutional conservative" and a libertarian...

stated that the non-disclosure is imposed for one year, though this is not explicitly mentioned in the section.

In order to protect anyone who complies with the order, FISA now prevents any person who complies with the order in "good faith

Good faith

In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...

" from being liable for producing any tangible goods required by the court order. The production of tangible items is not deemed to constitute a waiver of any privilege in any other proceeding or context.

As a safeguard, section 502 of FISA compels the Attorney General to inform the Permanent Select Committee on Intelligence of the House of Representatives

United States House Permanent Select Committee on Intelligence

The United States House Permanent Select Committee on Intelligence is a committee of the United States House of Representatives, currently chaired by Mike Rogers. It is the primary committee in the U.S...

and the Select Committee on Intelligence of the Senate

United States Senate Select Committee on Intelligence

The United States Senate Select Committee on Intelligence is dedicated to overseeing the United States Intelligence Community—the agencies and bureaus of the federal government of the United States who provide information and analysis for leaders of the executive and legislative branches. The...

of all such orders granted. Every six months, the Attorney General must also provide a report to the Committee on the Judiciary of the House of Representatives

United States House Committee on the Judiciary

The U.S. House Committee on the Judiciary, also called the House Judiciary Committee, is a standing committee of the United States House of Representatives. It is charged with overseeing the administration of justice within the federal courts, administrative agencies and Federal law enforcement...

and the Senate

United States Senate Committee on the Judiciary

The United States Senate Committee on the Judiciary is a standing committee of the United States Senate, of the United States Congress. The Judiciary Committee, with 18 members, is charged with conducting hearings prior to the Senate votes on confirmation of federal judges nominated by the...

which details the total number of applications made for orders approving requests for the production of tangible things and the total number of such orders either granted, modified, or denied.

Section 216: Authority to issue pen registers and trap and trace devices

Section 216 (Modification of authorities relating to use of pen registers and trap and trace devices) deals with three specific areas with regards to pen register

Pen register

A pen register is an electronic device that records all numbers called from a particular telephone line. The term has come to include any device or program that performs similar functions to an original pen register, including programs monitoring Internet communications.The United States statutes...

s and trap and trace device

Trap and trace device

A trap and trace device is an electronic device used to record and trace all communication signals from a telecommunication system. An analogous feature available for use by the general public would be Caller ID....

s: general limitations to the use of such devices, how an order allowing the use of such devices must be made, and the definition of such devices.

Limitations

details the exceptions related to the general prohibition on pen register

Pen register

and trap and trace device

Trap and trace device

s. Along with gathering information for dialup communications, it allows for gathering routing

Routing

Routing is the process of selecting paths in a network along which to send network traffic. Routing is performed for many kinds of networks, including the telephone network , electronic data networks , and transportation networks...

and other addressing information. It is specifically limited to this information: the Act does not allow such surveillance to capture the actual information that is contained in the communication being monitored. However, organisations such as the EFF have pointed out that certain types of information that can be captured, such as URL

Uniform Resource Locator

In computing, a uniform resource locator or universal resource locator is a specific character string that constitutes a reference to an Internet resource....

s, can have content embedded in them. They object to the application of trap and trace and pen register devices to newer technology using a standard designed for telephone

Telephone

The telephone , colloquially referred to as a phone, is a telecommunications device that transmits and receives sounds, usually the human voice. Telephones are a point-to-point communication system whose most basic function is to allow two people separated by large distances to talk to each other...

Making and carrying out orders

It also details that an order may be applied for ex parte
Ex parte
Ex parte is a Latin legal term meaning "from one party" .An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present. In Australian, Canadian, U.K., Indian and U.S...

(without the party it is made against present, which in itself is not unusual for search warrants), and allows the agency who applied for the order to compel any relevant person or entity providing wire or electronic communication service to assist with the surveillance. If the party whom the order is made against so requests, the attorney for the Government, law enforcement or investigative officer that is serving the order must provide written or electronic certification that the order applies to the targeted individual.

If a pen register or trap and trace device is used on a packet-switched data network, then the agency doing surveillance must keep a detailed log containing:

any officer or officers who installed the device and any officer or officers who accessed the device to obtain information from the network;
the date and time the device was installed, the date and time the device was uninstalled, and the date, time, and duration of each time the device is accessed to obtain information;
the configuration of the device at the time of its installation and any subsequent modification made to the device; and
any information which has been collected by the device

This information must be generated for the entire time the device is active, and must be provided ex parte and under seal

Seal (device)

A seal can be a figure impressed in wax, clay, or some other medium, or embossed on paper, with the purpose of authenticating a document ; but the term can also mean the device for making such impressions, being essentially a mould with the mirror image of the design carved in sunken- relief or...

to the court which entered the ex parte order authorizing the installation and use of the device. This must be done within 30 days after termination of the order.

Orders must now include the following information:

the identifying number of the device under surveillance
the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied
if a trap and trace device is installed, the geographic limits of the order must be specified

This section amended the non-disclosure requirements of by expanding to include those whose facilities are used to establish the trap and trace or pen register or to those people who assist with applying the surveillance order who must not disclose that surveillance is being undertaken. Before this it had only applied to the person owning or leasing the line.

Definitions

The following terms were redefined in the US Code's chapter 206 (which solely deals with pen registers and trap and trace devices):

Court of competent jurisdiction: defined in , subparagraph A was stricken and replaced to redefine the court to be any United States district court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...

(including a magistrate judge of such a court) or any United States court of appeals
United States court of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...

having jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...

over the offense being investigated (title 18 also allows State courts that have been given authority by their State to use pen register and trap and trace devices)
Pen register: defined in , the definition of such a device was expanded to include a device that captures dialing, routing
Routing
Routing is the process of selecting paths in a network along which to send network traffic. Routing is performed for many kinds of networks, including the telephone network , electronic data networks , and transportation networks...

, addressing, or signaling information from an electronics communication device. It limited the usage of such devices to exclude the capturing of any of the contents of communications being monitored. was also similarly amended.
Trap and trace device: defined in , the definition was similarly expanded to include the dialing, routing
Routing
Routing is the process of selecting paths in a network along which to send network traffic. Routing is performed for many kinds of networks, including the telephone network , electronic data networks , and transportation networks...

, addressing, or signaling information from an electronics communication device. However, a trap and trace device can now also be a "process", not just a device.
Contents: clarifies the term "contents" (as referred to in the definition of trap and trace devices and pen registers) to conform to the definition as defined in , which when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.

Section 217: Interception of computer trespasser communications

Section 217 (Interception of computer trespasser communications) firstly defines the following terms:

Protected computer: this is defined in , and is any computer that is used by a financial institution or the United States Government or one which is used in interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States.
Computer trespasser: this is defined in and references to this phrase means
1. a person who accesses a protected computer without authorization and thus has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer; and
2. does not include a person known by the owner or operator of the protected computer to have an existing contractual relationship with the owner or operator of the protected computer for access to all or part of the protected computer

Amendments were made to to make it lawful to allow a person to intercept the communications of a computer trespasser if

the owner or operator of the protected computer authorizes the interception of the computer trespasser's communications on the protected computer,
the person is lawfully engaged in an investigation,
the person has reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to their investigation, and
any communication captured can only relate to those transmitted to or from the computer trespasser.

Section 218: Foreign intelligence information

Section 218 (Foreign intelligence information) amended and (both FISA sections 104(a) (7)(B) and section 303(a)(7)(B), respectively) to change "the purpose" of surveillance orders under FISA to gain access to foreign intelligence to "significant purpose". Mary DeRosa, in The Patriot Debates, explained that the reason behind this was to remove a legal "wall" which arose when criminal and foreign intelligence overlapped. This was because the U.S. Department of Justice interpreted "the purpose" of surveillance was restricted to collecting information for foreign intelligence, which DeRosa says "was designed to ensure that prosecutors and criminal investigators did not use FISA to circumvent the more rigorous warrant requirements for criminal cases". However, she also says that it is debatable whether this legal tightening of the definition was even necessary, stating that "the Department of Justice argued to the FISA Court of Review in 2002 that the original FISA standard did not require the restrictions that the Department of Justice imposed over the years, and the court appears to have agreed [which] leaves the precise legal effect of a sunset of section 218 somewhat murky."

Section 219: Single-jurisdiction search warrants for terrorism

Section 219 (Single-jurisdiction search warrants for terrorism) amended the Federal Rules of Criminal Procedure to allow a magistrate judge who is involved in an investigation of domestic terrorism or international terrorism the ability to issue a warrant for a person or property within or outside of their district.

Section 220: Nationwide service of search warrants for electronic evidence

Section 220 (Nationwide service of search warrants for electronic evidence) gives the power to Federal courts to issue nationwide service of search warrants for electronic surveillance. However, only courts with jurisdiction over the offense can order such a warrant. This required amending and .

Section 221: Trade sanctions

Section 221 (Trade sanctions) amended the Trade Sanctions Reform and Export Enhancement Act of 2000. This Act prohibits, except under certain specific circumstances, the President from imposing a unilateral agricultural sanction or unilateral medical sanction against a foreign country or foreign entity. The Act holds various exceptions to this prohibition, and the Patriot Act further amended the exceptions to include holding sanctions against countries that design, develop or produce chemical or biological weapons, missiles, or weapons of mass destruction. It also amended the act to include the Taliban as state sponsors of international terrorism. In amending Title IX, section 906 of the Trade sanctions act, the Taliban was determined by the Secretary of State

United States Secretary of State

The United States Secretary of State is the head of the United States Department of State, concerned with foreign affairs. The Secretary is a member of the Cabinet and the highest-ranking cabinet secretary both in line of succession and order of precedence...

to have repeatedly provided support for acts of international terrorism and the export of agricultural commodities, medicine, or medical devices is now pursuant to one-year licenses issued and reviewed by the United States Government. However, the export of agricultural commodities, medicine, or medical devices to the Government of Syria or to the Government of North Korea

Government of North Korea

The North Korean government is the executive branch of the state, according to the Constitution of North Korea. In practice, the highest decisions are made by the National Defence Commission of North Korea which is led by its Chairman Kim Jong-il....

were exempt from such a restriction.

The Patriot Act further states that nothing in the Trade Sanctions Act will limit the application of criminal or civil penalties to those who export agricultural commodities, medicine, or medical devices to:

foreign entities who commit acts of violence to disrupt the Middle East peace process
those deemed to be part of a Foreign Terrorist Organisation under the Antiterrorism and Effective Death Penalty Act of 1996
Antiterrorism and Effective Death Penalty Act of 1996
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, is an act of Congress signed into law on April 24, 1996...
foreign entities or individuals deemed to support terrorist activities
any entity that is involved in drug trafficking
any foreign entity or individual who is subject to any restriction for involvement in weapons of mass destruction or missile proliferation.

Section 222: Assistance to law enforcement agencies

Section 222 (Assistance to law enforcement agencies) states that nothing in the Patriot Act shall make a communications provider or other individual provide more technical assistance to a law enforcement agency than what is set out in the Act. It also allows for the reasonable compensation of any expenses incurred while assisting with the establishment of pen registers or trap and trace devices.

Section 223: Civil liability for certain unauthorized disclosures

allows any person who has had their rights violated due to the illegal interception of communications to take civil action against the offending party. Section 223 (Civil liability for certain unauthorized disclosures) excluded the United States from such civil action.

If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of chapter 119 of the U.S. Code they may request an internal review from that agency or department. If necessary, an employee may then have administrative action taken against them. If the department or agency do not take action, then they must inform the notify the Inspector General who has jurisdiction over the agency or department, and they must give reasons to them why they did not take action.

A citizen's rights will also be found to have been violated if an investigative, law enforcement officer or governmental entity discloses information beyond that allowed in .

U.S. Code Title 18, Section 2712 added

A totally new section was appended to Title 18, Chapter 121 of the US Code: Section 2712, "Civil actions against the United States". It allows people to take action against the US Government if they feel that they had their rights violated, as defined in chapter 121, chapter 119, or sections 106(a), 305(a), or 405(a) of FISA. The court may assess damages no less than $US10,000 and litigation costs that are reasonably incurred. Those seeking damages must present them to the relevant department or agency as specified in the procedures of the Federal Tort Claims Act

Federal Tort Claims Act

The Federal Tort Claims Act or "FTCA", , is a statute enacted by the United States Congress in 1948. "Federal Tort Claims Act" was also previously the official short title passed by the Seventy-ninth Congress on August 2, 1946 as Title IV of the Legislative Reorganization Act, 60 Stat...

.

Actions taken against the United States must be initiated within two years of when the claimant has had a reasonable chance to discover the violation. All cases are presented before a judge, not a jury. However, the court will order a stay of proceedings

Stay of proceedings

A stay of proceedings is a ruling by the court in civil and criminal procedure, halting further legal process in a trial. The court can subsequently lift the stay and resume proceedings. However, a stay is sometimes used as a device to postpone proceedings indefinitely.-United Kingdom:In United...

if they determine that if during the court case civil discovery will hurt the ability of the government to conduct a related investigation or the prosecution of a related criminal case. If the court orders the stay of proceedings they will extend the time period that a claimant has to take action on a reported violation. However, the government may respond to any action against it by submitting evidence ex parte in order to avoid disclosing any matter that may adversely affect a related investigation or a related criminal case. The plaintiff is then given an opportunity to make a submission to the court, not ex parte, and the court may request further information from either party.

If a person wishes to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under FISA, then the Attorney General may file an affidavit

Affidavit

An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...

under oath that disclosure or an adversary hearing would harm the national security of the United States. In these cases, the court may review in camera and ex parte the material relating to the surveillance to make sure that such surveillance was lawfully authorized and conducted. The court may then disclose part of material relating to the surveillance. However, the court is restricted in they may only do this "where such disclosure is necessary to make an accurate determination of the legality of the surveillance". If it then determined that the use of a pen register or trap and trace device was not lawfully authorized or conducted, the result of such surveillance may be suppressed as evidence. However, should the court determine that such surveillance was lawfully authorised and conducted, they may deny the motion of the aggrieved person.

It is further stated that if a court or appropriate department or agency determines that an officer or employee of the United States willfully or intentionally violated any provision of chapter 121 of the U.S. Code they will request an internal review from that agency or department. If necessary, an employee may then have administrative action taken against them. If the department or agency do not take action, then they must inform the notify the Inspector General who has jurisdiction over the agency or department, and they must give reasons to them why they did not take action. (see for a similar part of the Act)

Section 224: Sunset

Section 224 (Sunset) is a sunset clause. Title II and the amendments made by the title originally would have ceased to have effect on December 31, 2005, with the exception of the below sections. However, on December 22, 2005, the sunset clause expiration date was extended to February 3, 2006, and then on February 2, 2006 it was further extended to March 10:

Title II sections that did **not** expire on March 10, 2006
Section	Section title
203(a)	Authority to share criminal investigation information : Authority to share Grand Jury information
203(c)	Authority to share criminal investigation information : Procedures
205	Employment of translators by the Federal Bureau of Investigation
208	Designation of judges
210	Scope of subpoenas for records of electronic communications
211	Clarification of scope
213	Authority for delaying notice of the execution of a warrant
216	Modification of authorities relating to use of pen registers and trap and trace devices
219	Single-jurisdiction search warrants for terrorism
221	Trade sanctions
222	Assistance to law enforcement agencies

Further, any particular foreign intelligence investigations that are ongoing will continue to be run under the expired sections.

Section 225: Immunity for compliance with FISA wiretap

Section 225 (Immunity for compliance with FISA wiretap) gives legal immunity to any provider of a wire or electronic communication service, landlord

Landlord

A landlord is the owner of a house, apartment, condominium, or real estate which is rented or leased to an individual or business, who is called a tenant . When a juristic person is in this position, the term landlord is used. Other terms include lessor and owner...

, custodian, or other person that provides any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance. This was added to FISA as section 105 .

External links

The source of this article is wikipedia, the free encyclopedia. The text of this article is licensed under the GFDL.