Let the Sun Set on PATRIOT - Section 206:

"Roving Surveillance Authority Under the Foreign Intelligence Surveillance Act of 1978"

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

What Section 206 Does

Imagine that the FBI could, with a single search warrant, raid every house or office that an individual suspect has visited over an entire year - every single place, whether or not the residents themselves are suspects. Suppose that the FBI could do this without ever having to identify the suspect in question. This is what Section 206 allows in the communications context. Section 206 authorizes intelligence investigators to conduct "John Doe" roving surveillance - meaning that the FBI can wiretap every single phone line, mobile communications device or Internet connection that a suspect might be using, without ever having to identify the suspect by name. This gives the FBI a "blank check" to violate the communications privacy of countless innocent Americans. What\'s worse, these blank-check wiretap orders can remain in effect for up to a year.

How Section 206 Changed the Law

Section 206 amended the Foreign Intelligence Surveillance Act (FISA) so that a wiretap order issued by the secret FISA court no longer has to specify what type of communications that the order applies to. This allows investigators to engage in "roving" surveillance, using a single wiretap order to listen in on any phone line or monitor any Internet account that a suspect may be using - whether or not other people who are not suspects also regularly use it.

Why Section 206 Should Sunset

Roving wiretaps are allowed in regular criminal investigations, so it might seem reasonable that the PATRIOT Act made them available to intelligence investigators. But FISA wiretaps lack many of the safeguards that prevent abuse of criminal wiretaps. For example, orders are issued using a lower legal standard than the "probable cause" used in criminal cases, are subject to substantially less judicial oversight and typically last at least three times longer than criminal wiretaps. Surveillance targets are never notified that they were spied on. Most important, and also unlike criminal wiretaps, the FISA court can issue "John Doe" wiretaps that don\'t even specify the surveillance target\'s name.

The bottom line: further relaxing controls on FISA surveillance by adding roving capability is a recipe for abuse and likely violates the Fourth Amendment\'s requirement that search warrants "particularly describ[e] the place to be searched, and the persons or things to be seized."


EFF strongly opposes renewal of Section 206, and urges you to do the same. We also support the Security and Freedom Ensured Act (SAFE Act, S 1709/HR 3352), a PATRIOT reform bill that would, among other things, limit the damage done to privacy by Section 206 - it would allow the FBI to get roving wiretaps on identified suspects, and John Doe taps on specific phone lines and Internet accounts, but not John Doe roving taps.