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EFF Analysis of The Anti-Terrorism Act of 2001 (ATA)How the Bill Would Change FISA SurveillanceGeneral commentsATA is defended on the basis of needing to meet the threat of terrorism. But ATA's expansion of FISA powers is not limited to terrorism cases. It must not be forgotten that a major reason for FISA was a well-documented record of executive branch abuse of national security surveillance powers. Second, the government essentially claims that FISA is more restrictive than other surveillance statutes, and that FISA should "more closely track" such other laws. This argument strikes EFF as disingenuous, because the government's special FISA powers are sui generis, intended only for gathering intelligence about foreign powers for counterintelligence purposes. Third, a recurring theme of ATA is the elimination of the requirement that FISA surveillance be limited to "agents of a foreign power." This requirement protects U.S. persons (citizens and permanent resident aliens), to some extent, against FISA surveillance. Removing this requirement is likely to increase FISA surveillance of U.S. persons. Non-U.S. persons, of course, are also entitled to Fourth Amendment protection. ATA Sec. 151Under current law, FISA authorizes
This section would extend the duration of a FISA order to up to one year for "agents of a foreign power" under § 1801(b)(1)(A), which applies to non-U.S. persons, i.e., aliens in the United States who are not permanent residents. This is a bad idea, because aliens in the United States are entitled to the protection of the Fourth Amendment. Moreover, this extension would apply to surveillance of their home phones and computers, because their offices can already be bugged or wiretapped for a year. By comparison, Title III provides that ordinary wiretaps may not last more than 30 days, and each successive extension is equally limited. 18 U.S.C. § 2518(4). Also, it should be remembered that the initial order is based only a showing of probable cause. The point of the 45- and 90-day limits is to require the government to come back and demonstrate, armed with the experience of the initial search or surveillance, that the target truly is an "agent of a foreign power." Extending the duration of initial order means that persons who are not "agents of a foreign power" are subjected to unjustified search and surveillance for a much longer period. ATA Sec. 152Under current law, FISA does not authorize so-called "roving wiretaps." Roving wiretaps are unlike conventional wiretaps in that they allow law enforcement officials to follow the suspect from one location to the next, without having to seek court authorization to wiretap each location's telephone line or other communication channel. In short, the government may wiretap any telephone that the target uses or is known to use. Roving wiretaps pose serious problems under the Fourth Amendment, which requires that any search warrant "particularly describ[e] the place to be searched, and the person and things to be seized." The particularity requirement carefully tailors the scope of search to its justification. Maryland v. Garrison, 480 U.S. 79, 84 & n. 8 (1987). An insufficiently particular warrant may constitute an unconstitutional "general warrant" like those used by the British against American colonists -- a prime concern of the Framers. See Marcus v. Search Warrant, 367 U.S. 717 (1961); Stanford v. Texas, 379 U.S. 476 (1965); Andresen v. Maryland, 427 U.S. 453 (1976); and Lo-Ji Sales, Inc. v. New York, 442 U.S. 391 (1979). In Andresen, for instance, a real estate attorney was suspected of fraud, and a search warrant was executed on his office. The officers seized substantial information beyond what the warrant specified because of a "catch-all" phrase in the warrant. The Supreme Court held that the "catch-all" phrase made the search general. Andresen, 427 U.S. at 479-82. Equally important, when the Court definitively ruled on the constitutionality of eavesdropping, it made clear that unless the particularity requirement was observed, an officer would have a "roving commission to Ôseize' any and all conversations." Berger, 388 U.S. at 59. Merely naming the person, the Court said, does not "particularly describ[e] the communications, conversations, or discussions to be seized." Ibid. This section would expand FISA to include "roving wiretap" authority. Current law requires court-"specified" third parties (like common carriers and ISPs) to provide assistance necessary to accomplish the surveillance. The proposed change would extend that obligation to unnamed and unspecified third parties. According to the Justice Department, "the FBI could simply present the newly discovered carrier, landlord, custodian, or other person with a generic order issued by the Court, and could then effect FISA coverage as soon as technically feasible." In practical terms, roving wiretaps pose a greater danger to personal privacy than ordinary wiretaps for two reasons. First, the issuing court in effect gives the government a blank check to do surveillance, because it does not approve particular wiretaps. There simply will not be a showing of probable cause for each wiretap. Second, by extending surveillance to many more communication channels, the number of potentially innocent conversations of innocent persons increases. "[O]nce a roving intercept order is issued, there is no express limitation on the number of places in which the government can install listening devices or telephones it can tap, and the decision in each instance [is] an executive rather than a judicial one." 1 Clifford S. Fishman & Anne T. McKenna, WIRETAPPING AND EAVESDROPPING 9-14 (2d ed.1995). The impact of this amendment would be especially great for communication facilities used by the general public, from public payphones to computers in public libraries. Upon the suspicion that a FISA target might use such a facility, the FBI could monitor all communications transmitted at the facility, and the recipient of the assistance order could not disclose that monitoring is occurring. ATA Sec. 153Under current law, FISA surveillance may only be used when foreign-intelligence information gathering is "the" sole or "primary" purpose. See FISA Backgrounder, QA15 (citing cases). This section would permit FISA surveillance even when the main purpose is to investigate a crime, which destroys the existing balance between counterintelligence and law enforcement surveillance. When the FISA court reviews an application for FISA surveillance, its job is merely to assure that all the necessary certifications -- including the representation that the primary purpose is to gather foreign intelligence information -- are present and not clearly erroneous. Thus, when FISA surveillance is challenged in a criminal proceeding, courts have said that it is "not the function of" the courts "to Ôsecond-guess' the certifications." United States v. Rahman, 861 F.Supp. 247, 250 (S.D.N.Y. 1994), affirmed 189 F.3d 88 (2d Cir. 1999), cert. denied 120 S.Ct. 439, 120 S.Ct. 830, 120 S.Ct. 830, 120 S.Ct. 831 (citing United States v. Duggan, 743 F.2d 59, 77 (2d Cir. 1984).. Given that FISA contains far fewer procedural protections than Title III, and that FISA orders are issued and implemented in great secrecy, this is an enormous change in the law. ATA Sec. 154Under current law, information obtained from non-FISA criminal investigations like federal grand jury investigations may only be disclosed under stringent procedural safeguards. This section would allow "foreign intelligence information" gathered in such investigations to be shared with federal law enforcement, the intelligence and defense community, and immigration authorities. The secrecy of grand jury investigations under current law is partly due to the sweeping powers of grand juries to compel the disclosure of information via subpoenas without judicial oversight. The Supreme Court has emphasized that the grand jury "is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries are not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime." Blair v. United States, 250 U.S. 273, 283 (1919). The grand jury can call anyone to testify before it based on a prosecutor's speculation about possible criminality, and they can be asked to bring documents and other tangible things. Any aspect of a person's life that might shed some light on criminality by someone is within the scope of a grand jury investigation. In contrast, the government cannot get an ordinary search warrant to obtain evidence unless it has probable cause. Thus, this section also upsets the balance between counterintelligence and law enforcement surveillance: it creates an incentive to use grand jury and other investigations as a tool for foreign intelligence collection. ATA Sec. 155Note that the FISA definition of pen/trap devices refers to the definition in the main pen/trap statute, which would be expanded under ATA Sec. 101. (see EFF's analysis of CTA for a discussion of pen/trap devices). Under current law, pen/trap devices may not be used under FISA unless the government shows that it will be placed on a communications device that has been or will be used in communications with "an agent of a foreign power." § 1842(c)(3). This section eliminates that requirement, allowing FISA pen/trap orders to be used on a government certification that it is likely to obtain information relevant to an ongoing foreign intelligence or international terrorism investigation. Thus, FISA pen/trap surveillance could be used against any person, not only agents of foreign powers. This eliminates two key protections for U.S. persons under FISA (as opposed to non-resident aliens). First, there would be no showing that the U.S. person was involved in some kind of criminality, which is needed for a U.S. person to be an agent of a foreign power. § 1801(b)(2). Second, it would evade the FISA constraint that a U.S. person cannot be deemed an "agent of a foreign power" solely on the basis of First Amendment activities. § 1805(a)(3)(A). ATA Sec. 156Under current law, a limited set of records -- those of common carriers, public accommodation facilities, physical storage facilities, and vehicle rental facilities -- can be obtained with a court order. 50 U.S.C. § 1861-62. This section gives the government the authority to obtain "any tangible things," including documents, via administrative subpoena, so long as they are relevant to a foreign intelligence or international terrorism investigation. This section greatly expands the scope of the "business records" provision. Moreover, the use of subpoena power eliminates the possibility of judicial oversight, because a court order would be unnecessary. The government's only argument for this substantial change is that "[t]he time and difficulty involved in getting such pleadings before the Court usually outweighs the importance of the business records sought." This strikes EFF as remarkably weak. If the records are not important, then the authority is unnecessary. If the records are, in fact, important, then it should be worth applying for a court order. Note also that the government's section-by-section analysis does not even mention that ATA would expand the scope of this section to business records in general. ATA Sec. 157Current law generally requires that government access under FISA to a variety of records (governed by the Fair Credit Reporting Act, the Financial Right to Privacy Act, ECPA) is conditioned on a showing by "specific and articulable facts" that there is reason to believe that the entity, person or consumer is an "agent of a foreign power." This section would eliminate this requirement and permit such access if the government certifies that the information is "relevant to an authorized foreign counterintelligence investigation." Not only does this lessen the government's factual burden, it removes the protections for U.S. persons that accompany the "agent of a foreign power" requirement. ATA Sec. 158The Federal Education Rights and Privacy Act protects the privacy of various educational records. This section would permit government access to such records if "any" federal employee designated by the Attorney General or Secretary of Education determines that the records can reasonably be expected to assist in investigating or preventing terrorism. Note that because ATA Sec. 309 defines many computer crimes unrelated to terrorism as "Federal terrorism offenses," this section would eliminate student privacy for all records that might relate to investigating such crimes. This represents a significant violation of privacy unrelated to the ATA's purported anti-terrorism justification.
Lee Tien
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