Future Actions
The EFF urges the following:
That law enforcement and the intelligence agencies will use these new powers carefully and limit their use to bona fide investigations into acts of terrorism.
That if these laws are misused to spy on innocent people, that the courts will appropriately punish those who misuse them and that Congress will reexamine its decision to grant such broad, unchecked powers.
That if these laws are misused to harm the rights of ordinary Americans involved in low level crimes unrelated to terrorism, the courts will refuse to allow evidence collected through use of these broad powers to be used in prosecuting them.
That the many vague, undefined terms in the USAPA will be defined in favor of protecting civil liberties and privacy of Americans. These include:
the definition of "content" of e-mails which cannot be retrieved without a warrant.
the definition of "without authority" in the computer trespass statute to include only those who have intentionally broken into computers that they have no relationship with, including educational institutions and other organizations that may not have formal "contractual" relationships with users.
That ISPs and others served with "roving" wiretaps and other Orders that do not specify them will require that the Attorney General give them certification that the order properly applies to them.
That Congress will require the law enforcement and intelligence agencies who operate under provisions of the USAPA that are set to expire in December, 2005, to provide them with comprehensive reports about their use of these new powers to enable Congress to reasonably determine whether these provisions should be renewed. (see related EFF statement)
I. Expanded Surveillance with Reduced Checks and Balances
A. A Brief, Incomplete Introduction to Electronic Surveillance under US Law.
US law has provided four basic mechanisms for surveillance on people living in the United States: interception orders authorizing the interception of communications; search warrants authorizing the search of physical premises and seizure of tangible things like books or other evidence; "pen register" and "trap-and-trace device" orders (pen/trap orders), which authorize the collection of telephone numbers dialed to and from a particular communications device; and subpoenas compelling the production of tangible things, including records. Each mechanism has its own proof standards and procedures based on the Constitution, statutes, or both.
US law also provides two separate "tracks" with differing proof standards and procedures for each of these mechanisms depending upon whether surveillance is done by domestic law enforcement or foreign intelligence. All of these have been expanded by the USAPA.
For instance, when surveillance is conducted for domestic law enforcement purposes, the probable cause standard of the Fourth Amendment applies to interception orders and search warrants. But a court order compelling an ISP to produce e-mail logs and addresses of past e-mail correspondents uses a lower standard: the government must show specific and articulable facts showing reasonable grounds to believe that the records are relevant and material to an ongoing criminal investigation. A pen/trap order uses an even lower standard: the government need only tell the court that the surveillance is relevant to a criminal investigation. The standard for subpoenas is also very low.
Where foreign intelligence surveillance is concerned, however, the standard of proof and procedures for each mechanism has been different. One key difference is that foreign intelligence surveillance is not based on the concept of criminality. Under the Foreign Intelligence Surveillance Act (FISA), the key issue is whether the intended surveillance target is an "agent of a foreign power" or a "foreign power." Only if the target is a U.S. citizen or permanent resident alien must the government show probable cause of criminality.
Second, FISA allows a secret court to authorize US intelligence agencies to conduct surveillance using each of the four basic mechanisms listed above. For instance, FISA interception orders involving U.S. persons are issued by the secret court based on an application from the Attorney General stating reasons to believe that the surveillance target is an agent of a foreign power or a foreign power, certifying that "the purpose" of the surveillance is to gather foreign intelligence information, and several other facts and representations. The secret court's role here, however, is quite limited: it is not supposed to "second-guess" the government's certifications or representations. (Unsurprisingly, the secret FISA court has only denied one application in its over twenty-year existence.) Moreover, unlike ordinary interception orders, FISA does not require reports to the court about what the surveillance found; no reports of what is being sought or what information is retrieved are ever available to the public. Thus, the secret court's only practical accountability is in a district court when a surveillance target is prosecuted and seeks to suppress the fruits of FISA surveillance.
FISA's requirements are even weaker if the electronic surveillance is directed solely at means of communications used exclusively between or among foreign powers and when it is unlikely that communications to which a U.S. person is a party will be intercepted; in such cases, surveillance may proceed for up to a year without a court order.
Immediately after the September 11 attacks, electronic surveillance was conducted pursuant to FISA orders. There have been no reports that the limitations of FISA power posed any problems for the government.
Domestic Law Enforcement Foreign Intelligence Surveillance
1. Intercept Orders.
Title III (named after the section of the original legislation, the Omnibus Crime Control and Safe Streets Act of 1968) surveillance is a traditional wiretap that allows the police to bug rooms, listen to telephone conversations, or get content of electronic communications in real time.
Obtained after law enforcement makes a showing to a court that there is "probable cause" to believe that the target of the surveillance committed one of a special list of severe crimes.
Law enforcement must report back to the court what it discovers.
Up to 30 days; must go back to court for 30-day extensions
(Courts do not treat unopened e-mail at ISPs as real-time communications.)
1. FISA Intercept Orders.
Secret Court. No public information about what surveillance requested or what surveillance actually occurs, except for a raw annual report of number of requests made and number granted (the secret court has only refused one request)
Previous standard was certification by Attorney General that "the purpose" of an order is a suspicion that the target is a foreign power or an agent of a foreign power.
Attorney General is not required to report to the court what it does.
Up to 90 days, or 1 year (if foreign power)
2. Pen/Trap.
Pen/Trap surveillance was based upon the physical wiring of the telephone system. It allowed law enforcement to obtain the telephone numbers of all calls made to or from a specific phone.
Allowed upon a "certification" to the court that the information is relevant to an ongoing criminal investigation.
Court must grant if proper application made
Does not require that the target be a suspect in that investigation and law enforcement is not required to report back to the court.
Prior to USAPA there had been debate about how this authority is to be applied in the Internet context.
2. FISA Pen/Trap.
Previous FISA pen/trap law required not only showing of relevance but also showing that the communications device had been used to contact an "agent of a foreign power."
While this exceeds the showing under the ordinary pen/trap statute, such a showing had function of protecting US persons against FISA pen/trap surveillance.
3. Physical search warrants
Judicial finding of probable cause of criminality; return on warrant. Previously, agents were required at the time of the search or soon thereafter to notify person whose premises were searched that search occurred, usually by leaving copy of warrant. USAPA makes it easier to obtain surreptitious or "sneak-and-peek" warrants under which notice can be delayed.
3. FISA Physical search warrants
See FISA 50 USC § 1822. USAPA extends duration of physical searches.
Under previous FISA, Attorney General (without court order) could authorize physical searches for up to one year of premises used exclusively by a foreign power if unlikely that US person will be searched; minimization required. A.G. could authorize such searches up to 45 days after judicial finding of probable cause that US target is or is an agent of a foreign power; minimization required, and investigation may not be based solely on First Amendment-protected activities.
4. Subpoenas for stored information.
Many statutes authorize subpoenas; grand juries may issue subpoenas as well. EFF's main concern here has been for stored electronic information, both e-mail communications and subscriber or transactional records held by ISPs. Subpoenas in this area are governed by the Electronic Communications Privacy Act (ECPA).
4. FISA subpoenas
Previously, FISA authorized collection of business records in very limited situations, mainly records relating to common carriers, vehicles or travel, and only via court order.
USAPA permits all "tangible things," including business records, to be obtained via a subpoena (no court order).
Domestic Law Enforcement Foreign Intelligence Surveillance
II. Increased Surveillance Authority
The USAPA removes many of the checks and balances that prevented both police and the foreign intelligence agencies from improperly conducting surveillance on US citizens who are not involved in criminal or terrorist activity. For Internet users, it opens the door for widespread surveillance of web surfing, e-mails and peer to peer systems. In addition, the protections against the misuse of these authorities -- by the foreign intelligence agencies to spy on US citizens and by law enforcement to use foreign intelligence authority to exceed their domestic surveillance authority -- have been greatly reduced.
A. Law enforcement intercept orders (Wiretaps)
Wiretaps (for telephone conversations) can only be issued for certain crimes listed in 18 USC §2516. USAPA adds to this list. This restriction has never applied to interception of electronic communications.
1. Adds Terrorism.
USAPA sec. 201 adds terrorism offenses (Note: this is probably redundant since list already included most if not all terrorist acts --e.g., murder, hijacking, kidnapping, etc.)
2. Adds Computer Fraud and Abuse Act (CFAA), 18 USC §1030.
USAPA sec. 202 adds felony violations of the CFAA (see below for discussion of changes to CFAA).
3. Removes voicemail from Title III purview.
USAPA sec. 209 allows police to get voicemail and other stored wire communications without an intercept order; now, only search warrant needed.
4. Exempts certain interceptions from requirement of judicial authorization
Computer trespassers, see below.
B. Law enforcement search warrants.
1. Single-jurisdiction search warrants for terrorism and for electronic evidence.
In general, search warrants must be obtained within a judicial district for searches in that district. Fed.R.Crim.Pro. 41. USAPA relaxes this rule. USAPA sec. 219 Adds terrorist investigations to the list of items where single-jurisdiction search warrants may be issued. Allows issuance in any district in which activities related to terrorism may have occurred for search of property or person within or outside the district. USAPA sec. 220. Once a judge somewhere approves a warrant for seizing unopened e-mail less than 180 days old, that order can be served on any ISP/OSP or telecommunications company nationwide, without any need that the particular service provider be identified in the warrant.
2. "Sneak-and-peek" warrants greatly expanded.
USAPA sec. 213. Can delay notification for "a reasonable period" and can be "extended for good cause shown" to court for any wire or electronic communication or tangible property. Problematic because notice to a searched person is a key component of Fourth Amendment reasonableness.
Some of the facts for everyone
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