Let the Sun Set on PATRIOT

Section 204: "Clarification of Intelligence Exceptions From Limitations on Interception and Disclosure of Wire, Oral, and Electronic Communications."

In March 2006, the sunsetting provisions were renewed. Read here for analysis.

Section 204: "Clarifying" Just How Scary the Law Already Was

Section 204's title makes it sounds innocuous: it's only a "clarification," making one small part of electronic surveillance law consistent with the way the rest of the law already worked. And that's true, to a point. But what 204 really clarified was just how bad the rest of the law was even before the USA PATRIOT Act passed, and how government surveillance of international communications is dangerously unregulated.

How Section 204 Changed the Law

There are several federal laws governing electronic surveillance by the government. They not only regulate government wiretaps, but also government access to stored communications (like voicemail and email), as well as specialized wiretaps done with pen registers or trap-and-trace devices. These "pen-trap" taps are a sort of mini-wiretap: instead of collecting the actual content of your communications, like the body of your email or the substance of your phone communication, they only collect information about your communications, like the phone numbers you called and the length of the calls, or the email addresses and size of the messages you receive. Pre-PATRIOT surveillance law made it clear that the general prohibitions against wiretapping and acquiring stored electronic communications applied only to surveillance done *inside* the United States, and didn't limit, for example, wiretapping international calls involving US persons, or accessing an American's email when it's stored on a foreign server. But there was one inconsistency—Congress forgot to clarify that the US could also ignore pen-trap laws when the information is gathered outside the country. Section 204 fixed this "problem," removing yet another safeguard against unchecked surveillance.

The Problem: Unchecked Surveillance of All International Communications

The problem is that modern communications systems, especially the Internet, are global in their reach and operation. The email you send to your friend down the street could pass through a foreign Internet server, or be stored by his email provider on a computer in another country. Yet under the law, the US government could freely wiretap or access those foreign servers, or indiscriminately intercept international phone calls, so long as a specific US person isn't targeted. Via surveillance conducted outside of the country, the government could even build vast databanks of all international calls and every Internet communication that happened to cross the border—all without ever violating any statute. In fact, it already is!

The US National Security Agency (NSA) currently conducts massive surveillance of all global communications as part of a project code-named ECHELON. The ECHELON system, operated in partnership with the UK, automatically sweeps up staggering amounts of satellite, microwave, cellular, and fiber-optic traffic, including communications to and from North America, and then filters them all through lists of red-flag keywords provided by the participating intelligence agencies. This is no conspiracy theory: as even The New York Times (purchase required) has reported, the NSA's "global eavesdropping net regularly picks up communications involving Americans, including phone calls, faxes, email messages and other communications."

The Solution: Oppose the PATRIOT Act!

The indiscriminate and unchecked surveillance of citizens' international communications is unacceptable in a constitutional democracy. Americans don't give up their expectation of privacy simply by dialing an international number or unknowingly using a foreign server to route email, and most Americans would presumably be shocked to know that massive NSA computer arrays are storing and processing most if not all of their international communications.

Of course, this problem will persist even if Section 204 sunsets: 204's expiration would only remove one small weapon from the government's international surveillance arsenal. But strong public opposition to Section 204's expansion of international surveillance authority could send a message to Congress that the rest of the law needs fixing. Tell your legislators to get serious about controlling international surveillance that violates the privacy of people inside the US, starting with Section 204. Demand that the sunsetting provisions of the PATRIOT Act be allowed to expire!