Section 207 makes wiretap orders and physical search warrants issued by the FISA court last longer. The FISA court is a secret panel of judges established by the Foreign Intelligence Surveillance Act of 1978 to authorize government surveillance in foreign intelligence and terrorism investigations.
Prior to PATRIOT, a FISA wiretap had a maximum duration of 90 days, and could be extended in 90-day increments. PATRIOT now allows a maximum duration of 120 days, with one-year extensions available.
Also prior to PATRIOT, FISA warrants for physical searches and their extensions were good for no more than 45 days. Now the warrants are good for up to 120 days, with extensions for up to one year.
FISA wiretaps and search warrants already lack many of the safeguards that prevent government abuse of criminal taps and warrants. For example, orders are issued using a lower legal standard than the "probable cause" used in criminal cases and are subject to substantially less judicial oversight, while surveillance targets are never notified that they were spied on. Therefore, time limits are a key check on this secret surveillance power: they help ensure that the government only intercepts particular conversations between particular people, and only searches particular places for particular evidence, regarding particular crimes, as required under the Fourth Amendment.
The time limits for FISA wiretaps and searches were already generous compared to taps and warrants available to the FBI in criminal investigations. For example, regular criminal wiretaps, which are issued for 30 days with 30-day extensions available, on average last 40 days and intercept 2,354 separate communications (phone calls, emails, faxes) between 96 people, most of whom are innocent bystanders. FISA taps, which now last at least four times as long as those criminal wiretaps, are certain to intercept many more innocent communications between many more innocent citizens. Yet PATRIOT weakened these checks without the DOJ ever having to show that the previous time limits had hindered earlier investigations.
Even before PATRIOT, if the time limit on a FISA wiretap or search warrant was running out, the FBI could go back to the FISA court for an extension, or in the case of an emergency, could even conduct searches or wiretaps without FISA court approval. Therefore, PATRIOT 207's extension of the FISA time limits is an unnecessary expansion of power with only one clear "benefit": it reduces the amount of paperwork the FBI has to do in order to maintain continuous surveillance. However, that paperwork is far from busy work -- it's a procedural check on government surveillance required by the Constitution. Needlessly reducing such checks on secret police power doesn't make us safer from terrorism. Instead, it makes us less safe from government abuse of that power.
EFF strongly opposes renewal of Section 207, and urges you to do the same. 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.
