Let the Sun Set on PATRIOT - Section 209:

"Seizure of VoiceMail Messages Pursuant to Warrants"

How Section 209 Changed the Law

Before PATRIOT, the privacy of your voice mail was protected by the Wiretap Act. This meant that in order to listen to your messages, the FBI had to secure a wiretap order. These orders are like "super" warrants -- they have even stricter Constitutional requirements than do warrants for physical searches.

After PATRIOT, however, your voice mail is governed by the Electronic Communications Privacy Act (ECPA), a statute that gives you much less legal protection against government spying. Now, instead of needing a wiretap order to listen to your voice mail, the FBI can use other legal processes with weaker privacy-protection standards:

• If you haven't listened to your voice mail messages and they are 180 days old or less, the FBI can use a search warrant.
• If you have listened to your messages, or if they are older than 180 days, the FBI can use a special court order for stored communications, or a subpoena.
• In some cases, the FBI may be able to simply ask for the voice mail, and your phone company may give it, without fulfilling any legal requirements at all.

As a result, the privacy of your voice mail is substantially reduced:

• Before PATRIOT, the FBI could gain access to your voice mail only by showing facts to a judge that demonstrate "probable cause" to believe that you are committing a crime. Now it need only demonstrate "reasonable grounds" for the search to get a court order -- or, if it uses a subpoena, mere "relevance" to an investigation.
• Before PATRIOT, the FBI eventually had to notify you if it listened to your voice mail messages. Now if they use a search warrant, the only way you'll find out is if the FBI uses your voice mail against you in court.
• Before PATRIOT, the FBI could listen to your voice mail only if you were suspected of one of a limited number of serious crimes. Now it can gain access to your voice mail messages for any kind of criminal investigation whatsoever.
• Before PATRIOT, if the FBI listened to your voice mail illegally, it couldn't use the messages as evidence against you -- this is the so-called exclusionary rule. But the ECPA has no such rule, so even if the FBI gains access to your voice mail in violation of the statute, it can freely use it as evidence against you.

In stripping these key privacy protections from your voice mail, PATRIOT is in possible violation of the Fourth Amendment to the U.S. Constitution.

Why Section 209 Should Sunset

Section 209 is a perfect example of the opportunism shown by the Department of Justice in the wake of the 9/11 terrorist attacks. Knowing that a bill tagged as "anti-terrorist" couldn't fail to pass, the DOJ loaded PATRIOT with its entire wish list of new powers, regardless of whether these powers targeted terrorism. Section 209 is one such power -- expanding the FBI's ability to search your communications in any criminal investigation, terrorism-related or not. Yet the DOJ never indicated that the previous law significantly hindered its investigations, much less put stumbling blocks in the fight against terrorism.

Conclusion

Passed by Congress in a climate of fear, Section 209 effects a dangerous and unnecessary reduction in citizens' privacy and should be allowed to sunset. EFF strongly opposes its renewal, and we urge you to oppose it, too. We also support the Security and Freedom Ensured Act (SAFE Act, S 1709/HR 3352) and encourage you to visit EFF's Action Center today to let your representatives know you support the bill.