FACT SHEET:USA PATRIOT ACT PROVISIONS SET FOR REAUTHORIZATION

For more than three years, the USA PATRIOT Act has been an invaluable tool in the war on terror, helping the law enforcement and intelligence communities to coordinate, communicate, and uncover terrorist operations and other serious crimes. The Department of Justice has thoughtfully and carefully utilized the PATRIOT Act to fight crime and terrorism, acting within the framework of the Constitution and prioritizing the protection of civil liberties.

Today, Congress starts hearings on the PATRIOT Act to begin a discussion on 16 provisions of the law requiring reauthorization. These provisions have a proven track record of saving lives and fighting crime, and play an integral role in building a culture of prevention in the war on terror. The provisions set for reauthorization are as follows:

Section 201:

Section 201 allows law enforcement to utilize existing electronic surveillance authorities, such as wiretaps, to investigate certain offenses that terrorists are likely to commit, including chemical weapons offenses; use of weapons of mass destruction; violent acts of terrorism transcending national borders; financial transactions with countries which support terrorism; material support of terrorists; and material support of terrorist organizations. This provision allows investigators to gather information when looking into the full range of terrorism-related crimes.

In total, as of March 10, 2005, the Department has utilized section 201 on four occasions. These four uses occurred in two separate investigations. One of these cases involved an Imperial Wizard of the White Knights of the Ku Klux Klan, who attempted to purchase hand grenades for the purpose of bombing abortion clinics and was subsequently convicted of numerous explosives and firearms charges.

Section 202:

Section 202 adds felony violations of the Computer Fraud and Abuse Act to the list of federal wiretap predicates, including computer espionage, extortion, and intentionally damaging a federal government computer.

As of March 10, 2005, the Justice Department had used section 202 of the PATRIOT Act on two occasions. These two uses occurred in a computer fraud investigation that eventually broadened to include drug trafficking.

Section 203(b) and 203(d):

Section 203 allows law enforcement and intelligence officers to break down the “wall” that once hindered communication and to “connect the dots” in cases related to national security. This ability to exchange terrorism-related information did not exist prior to the passage of the PATRIOT Act and has since allowed for the sharing of foreign intelligence, counterintelligence, and foreign intelligence information obtained as part of a criminal investigation between federal law enforcement officers and federal intelligence officers for certain national security purposes.

Vital information has been made available to the intelligence community and other federal officials under section 203 on many occasions since the passage of the PATRIOT Act. For instance, such disclosures have been used to support the revocation of visas of suspected terrorists and prevent their reentry into the United States, track terrorists’ funding sources, and identify terrorist operatives overseas.

Section 204:

Section 204 is a technical amendment that merely clarifies what Congress had always intended a particular statute governing the interception and disclosure of certain types of communications to mean. Section 204 clarifies that the law which governs the installation and use of pen registers (surveillance devices that capture phone numbers dialed on outgoing telephone calls) and trap-and-trace devices (surveillance devices that capture the numbers identifying incoming calls) will not interfere with certain foreign intelligence activities that fall outside of the definition of “electronic surveillance” in the Foreign Intelligence Surveillance Act (FISA). Section 204 also makes it clear that the statute’s exclusivity provision applies to the interception of electronic communications as well as the interception of wire and oral communications.

Section 206:

Section 206 allows the FISA Court to authorize the use of roving surveillance, attaching the wiretap authorization to a particular suspect as opposed to a particular communications device. Because terrorists are trained to rapidly change their means of communication, section 206 greatly enhances the government’s ability to monitor sophisticated international terrorists by tracking individual suspects instead of individual modes of communication. This authority has long been granted to investigate ordinary crimes, including drug offenses. As of March 30, this provision had been used 49 times and has been effective in monitoring international terrorists and spies.

Section 207:

Section 207 extends the initial time duration of FISA electronic surveillance and physical search orders from 90 days to 120 days, and such orders may be extended for a maximum of one year-instead of 90 days-at a time with court approval. These orders and extensions require the express permission of a federal judge. The FISA court must find probable cause to believe that the target of the surveillance or search is a foreign power or an agent of a foreign power prior to granting authorization.

The Department estimates that section 207 has saved nearly 60,000 attorney hours. In other words, it has saved 30 lawyers a year’s work; and this estimate does not account for time saved by FBI agents, administrative staff, and the judiciary. Department personnel were able to spend that time pursuing other investigations and oversight matters.

Section 209:

Section 209 permits stored voicemail to be obtained by a search warrant rather than a wiretap order, making the procedure for obtaining voicemail messages consistent with the procedure for obtaining answering machine messages. This authority preserved all of the pre-existing standards for the availability of search warrants, but modernized the federal law by enabling investigators to more quickly access suspects’ voice-mail.

Section 209 has been very useful to the Department, and warrants issued pursuant to this provision have been used to obtain evidence in a variety of criminal cases, including a number of drug trafficking investigations, such as an investigation of a large-scale Ecstasy smuggling ring based in the Netherlands, an investigation into a series of violent robberies, and a kidnapping investigation.

Section 212:

Section 212 allows electronic communications service providers to disclose either customer records or the content of customers’ communications to a governmental entity in any emergency situation that involves an immediate danger of death or serious physical injury.

Section 212 has already played a vital role in investigating threats of violence and saving lives. Jared Bjarnason was indicted for threatening violence in order to obstruct members of the Islamic Center of El Paso, in the free exercise of their religion, and for transmitting a communication containing a threat to injure members of the Islamic Center. Specifically, Bjarnason was charged with sending an electronic mail message to the Islamic Center threatening violence against the Islamic Center and its members, which allegedly threatened to burn the Islamic Center’s mosque to the ground, if hostages held in Iraq were not freed within three days. With the PATRIOT Act’s authority, agents of the FBI were able to trace the allegedly threatening e-mail well before the expiration of the deadline contained in the threat. Absent this provision, investigating authorities would have had to obtain a separate search warrant from each service provider through whose system the e-mail traveled, a process which could have taken over 30 days.

Section 214:

Section 214 allows FISA to issue pen-register and trap-and-trace orders by certifying that the resulting information would be relevant to a foreign intelligence investigation. Previously, such orders could be issued under FISA only where the device to be monitored was being used to contact an agent of a foreign power, such as an individual engaged in international terrorism. This provision makes the standard in FISA similar to the standard for obtaining a pen register or trap-and-trace order in the criminal context.

The Department has applied section 214 to international terrorism and counterintelligence investigations, including a case where the subject was believed to be attempting to procure nuclear arms. In one terrorism case, the only phone that the FBI could prove was used by the subject was his associate’s phone. Additionally, the FBI had insufficient information that this associate was an agent of a foreign power. Thus, under the previous standard for a FISA pen register or trap-and-trace order, the FBI may not have succeeded in obtaining a pen register or trap-and-trace order. The standard established by section 214, however, allowed the agents to obtain the order by demonstrating that the information to be collected was relevant to an ongoing terrorism investigation. The information obtained by the order was valuable because it demonstrated the extent that the subject and his associate were communicating with subjects of other terrorism investigations.

Section 215:

Section 215 allows the FISA court to order the production of business records and other items, in the context of a national security investigation, to obtain foreign intelligence information not concerning a U.S. person; or to protect against international terrorism or clandestine intelligence activities. Section 215 cannot be used to investigate ordinary crimes or domestic terrorism, and it is expressly provided that the FBI cannot conduct an investigation on a U.S. citizen solely on the basis of activities protected by the First Amendment.

Federal judges have reviewed and granted the Department’s request for a section 215 order 35 times as of March 30, 2005. To date, the provision has only been used to obtain driver’s license records, public accommodations records, apartment leasing records, credit card records, and subscriber information-such as names and addresses-for telephone numbers captured through court-authorized pen registers. The Department has not obtained a section 215 order to obtain library or bookstore records, medical records, or gun sale records.

Section 217:

Section 217 allows victims of computer hacking to obtain law enforcement assistance in intercepting the electronic communications of a computer trespasser that have been transmitted to, from, or through a protected computer under limited circumstances. Essentially, this provision brings the law relating to cyber-trespassing in line with the law relating to physical trespassing.

Section 218:

Section 218 encourages an integrated antiterrorism campaign by allowing FISA orders to be issued in cases where “a significant purpose” of the investigation is obtaining foreign intelligence. This provision lifted the “wall” which too often inhibited vital information sharing and coordination between the intelligence and law enforcement communities. Full coordination between these communities has already resulted in important successes in the war on terror.

For example, the Department’s successful dismantling of a Portland, Oregon terror cell, popularly known as the “Portland Seven,” relied heavily on use of section 218 in combination with section 504 of the PATRIOT Act. Members of this terror cell had attempted to travel to Afghanistan in 2001 and 2002 to take up arms with the Taliban and al Qaeda against United States and coalition forces fighting there, and law enforcement officials had learned at least one member of the cell had contemplated attacking Jewish schools or synagogues. Using sections 218 and 504 of the PATRIOT Act, agents and prosecutors were ultimately able to collect sufficient evidence to charge seven defendants and then to secure convictions and prison sentences ranging from three to 18 years for the six defendants taken into custody. Charges against the seventh defendant were dismissed after he was killed in Pakistan by Pakistani troops on October 3, 2003.

Section 220:

Section 220 allows federal judges with jurisdiction over a particular investigation to issue search warrants to obtain electronic evidence that is stored anywhere in the country. This provision allows courts to obtain evidence quickly and has proved itself invaluable in terrorist and criminal cases alike.

Section 220 was vital in the case of Bobbie Jo Stinnett, a pregnant woman who was strangled to death in her Missouri home, and whose unborn daughter was cut from her womb with a kitchen knife. Police officers were able to use Section 220 to investigate e-mails relating to her dog-breeding business. Officers found an exchange from a message board between Bobbie Jo and someone who called herself Darlene Fisher, who claimed to be interested in a dog. She had asked Bobbie Jo for directions to her house for a meeting on December 16th, the same day as the murder. Using a PATRIOT Act provision, FBI agents and examiners were able to trace Darlene Fisher's messages to a server in Topeka, find Darlene Fisher's e-mail address, and then trace it to a house in Melvern, Kansas. Darlene Fisher's real name was actually Lisa Montgomery. Montgomery was arrested and subsequently confessed. Bobbie Jo’s baby, Victoria Jo Stinnett, was found alive less than 24 hours after she was cut from her mother's womb and she was returned to her father.

Section 223:

Section 223 allows individuals to sue the federal government for money damages if a federal official discloses sensitive information without authorization. This provision provides individuals with a remedy in the event that an error is made by a federal law enforcement or intelligence agent. To date, no lawsuits have been filed against the government under section 223.

Section 225:

Section 225 immunizes from civil liability individuals who disclose information to the government in compliance with a FISA order. This immunity is important because it helps to secure the prompt cooperation of private parties with law enforcement officers to ensure the effective implementation of court orders.

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