Let the Sun Set on PATRIOT - Section 223:

"Civil Liability for Certain Unauthorized Disclosures"

What's PATRIOT Section 223?

Section 223 is a unique PATRIOT provision in that, originally, most privacy and civil liberties organizations supported it without reservation: the ACLU has called it a "pro-privacy provision that provides a civil remedy for unlawful surveillance," the Center for Democracy and Technology deems it (PDF) uncontroversial, and even we sang its praises in a previous version of this analysis. But upon further examination we've come to our senses and recognized Section 223 for what it truly is: a legislative trojan horse. The few checks and balances that 223 obviously added to the law blinded us to the ones it subtly removed. The end result is an amendment to the law that actually made it much harder to sue the federal government for illegally wiretapping your communications or accessing private stored communications like your voice mail and email.

How Section 223 Changed the Law: The Good News

Section 223 made clear that the civil penalties that apply when investigators conduct wiretaps or seize electronic evidence without a court order also apply to unauthorized disclosure of communications that were legally obtained. That means that even if investigators get a court order to collect your communications in the first place, they can't show them to anyone without court approval. Section 223 also created new privacy protections by providing authority for agency heads to discipline federal officers who violate electronic surveillance laws.

How Section 223 Changed the Law: The Bad News

Before PATRIOT, the US government could be sued under the same procedures and standards as anyone else who violated the Wiretap Act or the Electronic Communications Privacy Act (ECPA). Section 223, however, made it much harder for people to sue the government when federal agents violate these laws:

• You can no longer sue the government for "intentional" violations of the law, like you can sue everyone else. Instead, the violation has to be "willful," a much higher standard.


• Before, you could get a trial in front of a jury if you sued the government. Now, suits against the government are heard only by a judge.


• Unlike with any other defendant, if you want to sue the federal government for illegal wiretapping you have to first go through an administrative procedure with the agency that did the wiretapping. That means, essentially, that you have to politely complain to the illegal wiretappers and tip them off to your legal strategy, and then wait for a while as they decide whether to do anything about it before you can sue them in court.


• Before PATRIOT, in addition to being able to sue for money damages, you could sue for declaratory relief from a judge. For example, an Internet service provider could ask the court to declare that a particular type of wiretapping that the government wants to do on its network is illegal. One could also sue for an injunction from the court, ordering that any illegal wiretapping stop. PATRIOT section 223 signficantly reduced a judge's ability to remedy unlawful surveillance, making it so you can only sue the government for money damages. This means, for example, that no one could sue the government to stop an ongoing illegal wiretap. At best, one could sue for the government to pay damages while the illegal tap continued!

Why (Parts of) Section 223 Should Sunset

The poison pills hidden amongst Section 223's uncontroversial new privacy protections sharply reduced the goverment's accountability for illegal wiretapping and access to stored private communications. The government's broad authority to conduct electronic surveillance requires equally powerful checks and balances to increase accountability and prevent abuse, especially since PATRIOT in many cases reduced court oversight and lowered the legal standards necessary for engaging in such surveillance. One of the most significant protections is giving people subject to surveillance the ability to have their day in court, and Section 223 makes that much harder.

Although the new protections added by Section 223 are good ideas and should be renewed, they certainly don't balance out the damage done to privacy by the rest of the section, which Congress should allow to sunset.