USA Patriot Act, the fourth amendment, and paranoia: can they read this while I'm typing?They that can give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety. (1)
The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping Secretly gaining unauthorized access to confidential communications. Examples include listening to radio transmissions or using laser interferometers to reconstitute conversations by reflecting laser beams off windows that are vibrating in synchrony to the sound in the room. deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society. (2)
We cherish our Fourth Amendment privacy rights during times of peace and security, but they suffer greatly during times of perceived peril. (3) On October 26, 2001, President George W. Bush, himself the son of a wartime president, signed the lugubriously-named USA PATRIOT Act USA PATRIOT Act [Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorists], 2001, U.S. (USAPA USAPA United States Army Publishing Agency
USAPA United States of America Pickleball Association
USAPA United States of America Patriot Act
USAPA USA Program Administrators, Inc.
USAPA United States Airborne Pathfinder's Association
USAPA United States Agricultural Producers Alliance ) into law. (4) The Act is massive in scope and reach, and has quickly become a flashpoint of controversy in the contemporary civil liberties lexicon. (5) Congress assembled and passed USAPA with a quickness uncharacteristic un·char·ac·ter·is·tic
Unusual or atypical: an uncharacteristic display of anger.
un of the federal government, in a mere six weeks following the unprecedented terrorist attacks of September 11, 2001. (6)
President Bush and his Attorney General, John Ashcroft John David Ashcroft (born May 9 1942) is an American politician who was the 79th United States Attorney General. He served during the first term of President George W. Bush from 2001 until 2005. Ashcroft was previously the Governor of Missouri (1985 – 1993) and a U.S. , awash in a rising tide Noun 1. rising tide - the occurrence of incoming water (between a low tide and the following high tide); "a tide in the affairs of men which, taken at the flood, leads on to fortune" -Shakespeare
flood tide, flood of public hysteria, succeeded in enacting legislation criticized by many as an attempt to consolidate too much power in the executive branch of the Federal government. (7) Critics rightly recognize that parts of the Act may seriously compromise the Fourth Amendment and the fundamental right of privacy by expanding the ability of executive branch law enforcement agencies A law enforcement agency (LEA) is a term used to describe any agency which enforces the law. This may be a local or state police, federal agencies such as the Federal Bureau of Investigation (FBI) or the Drug Enforcement Administration (DEA). to conduct electronic surveillance and wiretapping A form of eavesdropping involving physical connection to the communications channels to breach the confidentiality of communications. For example, many poorly-secured buildings have unprotected telephone wiring closets where intruders may connect unauthorized wires to listen in on phone on suspected criminals. (8) The USAPA furthers this objective by using ex parte [Latin, On one side only.] Done by, for, or on the application of one party alone.
An ex parte judicial proceeding is conducted for the benefit of only one party. proceedings in secret courts exercising a greatly reduced standard of review over surveillance applications made by the Attorney General. (9) The term "Patriot Act Patriot Act: see USA PATRIOT Act. " is now shorthand for a growing polarization in American politics, and has already raised serious questions concerning abuses by those it newly empowers. (10)
USAPA effectively gives the Attorney General the power to conduct electronic surveillance over almost anybody alleged to bear any tenuous connection to a group that advocates violence. (11) Civil libertarians accuse the President and Attorney General of making a power grab, asserting that the USAPA violates Fourth Amendment privacy safeguards. (12) While certain provisions are very intrusive, the Act and its subsequent reading by the Foreign Intelligence Surveillance Court of Review In 1978, Congress enacted the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C.A. §§ 1800–1829 (West 2003) to prescribe separate procedures for federal agents to follow when conducting foreign surveillance. does reflect the historic tendency of the judiciary to defer to the Executive, in cyberspace Coined by William Gibson in his 1984 novel "Neuromancer," it is a futuristic computer network that people use by plugging their minds into it! The term now refers to the Internet or to the online or digital world in general. See Internet and virtual reality. Contrast with meatspace. or otherwise, particularly during wartime. (13)
What troubles many about the Act is the perceived marginalizing of the judiciary and the relaxing of the standards to be met by prosecutors seeking to gather evidence. (14) Civil libertarians point to the Supreme Court's own jurisprudence jurisprudence (jr'ĭsprd`əns), study of the nature and the origin and development of law. in highlighting the fact that the intersection of free speech and law enforcement is particularly volatile. (15) USAPA so quickly changed the American political landscape that it is difficult to prospectively assess its impact, although some argue the Act is simply a manifestation of the cyclical expansions and contractions of civil liberties not unusual in American history. (16)
A historical analysis of the Fourth Amendment provides this context, specifically in regard to the warrant requirement for electronic surveillance. (17) Prior to USAPA, the level of judicial oversight Judicial oversight describes an aspect of the separation of powers prescribed by the Constitution of the United States, specifically the process whereby independent courts may review and restrain actions of the administrative and legislative branches. required for any particular intelligence-gathering endeavor hinged on whether the intelligence sought was "foreign intelligence" or a more straightforward criminal investigation. (18) Where this semantic line is drawn determines the necessity, or lack thereof, for a warrant. (19) This distinction determines who will grant the authority for the surveillance, and USAPA redraws its boundaries in dramatic fashion. (20) Analysis of Fourth Amendment history, and its bearing on issues of electronic surveillance and national security, elicits a better understanding of the changes USAPA works on contemporary privacy interests. (21) This paper discusses the origin and evolution of the Fourth Amendment's protections against warrantless wiretapping, and includes a selective overview of various portions of USAPA affecting those protections.
II. THE FOURTH AMENDMENT & THE AMERICAN RIGHT TO PRIVACY
The Fourth Amendment to the U.S. Constitution reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (22)
The framers of the Constitution did not envision modern telecommunications, and thus the Fourth Amendment on its face seems to limit a protected area
Protected areas of a purely physical nature. (23) While the founding fathers could not have envisioned the degree to which high-tech terrorists in the twenty-first century could instill in·still
To pour in drop by drop.
instil·lation n. fear, they deliberately created a living document based on simple principles that is capable of dealing with almost any set of circumstances. (24)
Historically, and as a result of this Constitutional elasticity, whenever national security is threatened, privacy protections are accordingly reduced. (25) Serious threats result in public hysteria and a consequent pressure on the executive to act in a manner the public perceives as strong and decisive. (26) The courts are charged to read the Constitution as tolerant of these intermittent and limited intrusions into civil liberties. (27) In the period just after September 11th 2001, in keeping with historical trends, an unsettled public willingly placed greater power in the hands of receptive federal law enforcement agencies. (28) Despite the dire nature of the circumstances, many erstwhile statesmen and others criticized USAPA for its breadth and dramatic scope, positing that by diminishing judicial oversight, reducing operational barriers and widening the scope of what is searchable, the Act abrogates the Fourth Amendment. (29)
The Fourth Amendment right to privacy is rooted in the English common law, as is most of our revered Constitutional jurisprudence. (30) The need for protection against unlawful search and seizure search and seizure
In law enforcement, an exploratory investigation of a premises or a person and the taking into custody of property or an individual in the interest of gaining evidence of unlawful activity or guilt. arose out of colonial frustration with the British occupiers' arbitrary imposition of justice. (31) The invention of the telephone The history of the invention of the telephone is a confusing claim and counterclaim, further worsened by the lawsuits which hoped to resolve the patent claims of individuals. and rapid technological improvements occurring in the late nineteenth and early twentieth century raised novel issues of interpretation not seen in the first century or so of American political history and reopened the once-settled question of where to draw the line between public and private. (32)
The Fourth Amendment provides that in the absence of special circumstances special circumstances n. in criminal cases, particularly homicides, actions of the accused or the situation under which the crime was committed for which state statutes allow or require imposition of a more severe punishment. , law enforcement must obtain the approval of a neutral judicial officer before any search or seizure happens in a place subject to a reasonable expectation of privacy. (33) Specifically, requests for search warrants must satisfy three conditions. (34) First, the search must be "reasonable"--the courts have long struggled to define the parameters of this reasonableness. (35) Second, the warrant must specify with particularity par·tic·u·lar·i·ty
n. pl. par·tic·u·lar·i·ties
1. The quality or state of being particular rather than general.
2. the subject matter of the search. (36) Finally, a neutral magistrate must be imposed between the law enforcement official and the object of the search. (37)
The test of reasonableness is elastic and requires both a liberal construction and broad application. (38) In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. (39) Courts must consider the scope of the particular intrusion, the manner in which it occurs, the justification for initiating it, and the place it happens. (40) Therefore, this malleable malleable /mal·le·a·ble/ (mal´e-ah-b'l) susceptible of being beaten out into a thin plate.
1. Capable of being shaped or formed, as by hammering or pressure. notion of "reasonableness" lies at the center of a fluid doctrine governing the standards applied by the courts in the areas of search and seizure. (41) This fluid standard of reasonableness permits doctrinal shift. (42)
In our complex society the right to privacy has grown to encompass more than mere property rights. (43) As a result of this shift, which occurred between the industrial revolution and the passage of USAPA, the Fourth Amendment today is more like an umbrella, moving to protect a mobile person, than a roof protecting a house. (44) From 1978 until very recently, analysis of the Fourth Amendment's general prohibition of warrantless wiretapping centered on the dichotomy between surveillance of foreign powers (and their agents) and surveillance of ordinary people for criminal purposes. (45) The timely nature of the threat posed by terrorism to U.S. security interests and continued doctrinal shift in the U.S. Federal Courts has resulted in a move away from Fourth Amendment protections not atypical in a time of war, and there is now emerging an understanding that the use of warrantless electronic surveillance is likely to expand considerably and will be held Constitutional. (46)
III. THE SCOPE OF USAPA IS FAR BEYOND THE TRADITIONAL NOTION OF NATIONAL SECURITY
USAPA consists of 156 individual sections grouped under ten Titles. (47) Title II of the Act is entitled "Enhanced Surveillance Procedures" and contains 25 sections that concern Titles 18 and 50 of the United States Code Noun 1. United States Code - a consolidation and codification by subject matter of the general and permanent laws of the United States; is prepared and published by a unit of the United States House of Representatives
U. S. and Rules 6 and 41 of the Federal Rules of Criminal Procedure The Federal Rules of Criminal Procedure are the procedural rules that govern how federal criminal prosecutions are conducted in United States District Courts, the general trial courts of the U.S. government. As such, they are the companion to the Federal Rules of Civil Procedure. . (48) Seven sections of Title II concern the Foreign Intelligence Surveillance Act alone. (49) Most of the Act will "sunset" in five years, but nine of the most contentious of the twenty five sections in Title II are exempt and shall not expire. (50)
Many of USAPA's provisions are relatively insipid, like its generic, one-sentence condemnation of religious hatred. (51) USAPA sweeps widely, however, encompassing the esoteric as well. (52) Furthermore, in addition to the electronic surveillance provisions of the Act there is much space devoted to such diverse issues as prevention of money-laundering, (53) border protection, (54) and intelligence sharing. (55) In many respects USAPA indicates the Federal government's desire to modernize its capabilities in sectors not traditionally thought of as security-related. (56) The short span of time elapsing between the events of September 11, and USAPA's subsequent drafting and adoption has been illustrated by some early difficulties in the court system. (57) Interpretations of the Act's more complex issues are sure to result in many years of highly technical litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. encompassing wider-reaching issues. (58)
IV. A HISTORY OF WARRANTLESS ELECTRONIC SURVEILLANCE.
Many civil libertarians, aware that courts historically look askance a·skance also a·skant
1. With disapproval, suspicion, or distrust: "The area is so dirty that merchants report the tourists are looking askance" Chris Black. at wiretapping, did not learn until recently that the executive branch already enjoys tremendous latitude in the area of foreign-intelligence gathering. (59) Less surprising is the degree to which aggressive law enforcement officials have sought to make use of wiretapping for evidence gathering purposes since the advent of the telecommunications age. (60) The history of electronic surveillance in American jurisprudence American Jurisprudence (often referred to as Am. Jur. 2d) is an encyclopedia of United States law, published by Thomson West. It was originated by Lawyers Cooperative Publishing, which was subsequently acquired by the Thomson Corporation. turns on a number of discreet issues, small in number but evolving conceptually along with our understanding of communications and technology. (61)
As recently as 1928, a full half-century into the telephone age, the Supreme Court refused to read the Fourth Amendment as offended by a search of any kind other than an actual physical search of a physical premises. (62) In the early case of U.S. v. Olmstead, the Supreme Court explicitly rejected the notion of wiretapping as being an activity offensive to the Fourth Amendment's prohibition of unreasonable search and seizure unreasonable search and seizure n. search of an individual or his/her premises (including an automobile) and/or seizure of evidence found in such a search by a law enforcement officer without a search warrant and without "probable cause" to believe evidence of a . (63) This requirement of actual physical invasion is known as the "physical trespass trespass, in law, any physical injury to the person or to property. In English common law the action of trespass first developed (13th cent.) to afford a remedy for injuries to property. " doctrine. (64)
Civil libertarians may take note that for decades prior to the passage of FISA Noun 1. FISA - an act passed by Congress in 1978 to establish procedures for requesting judicial authorization for foreign intelligence surveillance and to create the Foreign Intelligence Surveillance Court; intended to increase United States counterintelligence; , Congress imposed no constraints on the executive with regards to gathering any information that fell under the aegis of national security. (65) By 1961, courts started to perceive the "physical trespass" doctrine as perhaps too rarefied rar·e·fied also rar·i·fied
1. Belonging to or reserved for a small select group; esoteric.
2. Elevated in character or style; lofty.
1. to be effective or logical. (66) The Supreme Court in Silverman v. United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. effectively broke the doctrine's back, acknowledging that technology had advanced to a point where it was no longer logical to equate a protected sphere of liberty with a protected physical locus. (67) Here, for the first time the Court acknowledged that the recording of overheard statements may be a Fourth Amendment issue, notwithstanding the lack of physical trespass. (68)
Six years later the Court put yet a finer point on the issue of physical trespass, in considering whether a listening device placed on top of a telephone booth for the purpose of intercepting the conversations occurring within was a search and seizure for Fourth Amendment purposes. (69) Writing with uncharacteristic bluntness, Justice Potter Stewart Potter Stewart (January 26 1915 – December 7 1985) was an Associate Justice of the United States Supreme Court. Education
Stewart was born in Jackson, Michigan, while his family was on vacation. His father, James G. revisited his opinion from Silverman, writing that "the Fourth Amendment cannot be translated into a general constitutional 'right to privacy.'" (70) The Court in Katz acknowledged the moribundity mor·i·bund
1. Approaching death; about to die.
2. On the verge of becoming obsolete: moribund customs; a moribund way of life. of Olmstead's "physical trespass" doctrine, and envisioned its replacement by a new standard, one recognizing that the Fourth Amendment protected "people, not places." (71) Finally, the Supreme Court imposed the requirement of a search warrant as a prerequisite to the clandestine recording of telephone conversations. (72) The elimination of the physical trespass doctrine importantly erased one of the few bright lines delimiting the area of reasonableness, and broadened the scope of debate to include much more tenuous and ephemeral forms of intrusion. (73) The Court did not wait long to apply this new criteria to the questions raised by nascent wiretapping technology, deciding in the same year the landmark case landmark case Law & medicine A civil or, far less commonly, criminal action that has had an impact on a particular area of medicine. of Berger v. New York Berger v. New York, 388 U.S. 41 (1967) was a case that was argued before the Supreme Court of the United States on April 13, 1967 and was decided on June 12 of the same year. . (74)
The Berger case centered on a challenge to the particularity and probable cause Apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution, or that a Cause of Action has accrued, justifying a civil lawsuit. aspects of New York's extremely permissive wiretap statute The Wiretap Statute et seq is title III of the Omnibus Crime Control and Safe Streets Act of 1968. It makes it illegal for anyone to intercept or disclose intercepted telephone communications, unless so ordered by a court of competent jurisdiction. . (75) The Court found that the statute violated the Fourth Amendment by authorizing the issuance of warrants upon the simple oath or affirmation of any number of law enforcement officials, ranging from the Attorney General down the chain of command to police sergeants. (76) The authorizing official needed only to affirm the existence of a reasonable belief in the surveillance's likelihood of yielding evidence of a crime. (77) The statute, although it did require a judge to issue the surveillance order, problematically did not specify with sufficient clarity the subject matter or purpose of the search. (78)
Although not a national security case, the Berger Court addresses the issue of rapid technological advances outpacing legislative developments, an issue very much at the heart of today's national security problems. (79) The Court noted the breadth of the intrusion on the Fourth Amendment posed by eavesdropping and determined that the New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of statute fell well outside the Constitution's requirements of particularity, because it did not sufficiently tell law enforcement to search or seize particular people, places or things. (80) The statute authorized the use of indiscriminate wiretapping similar in form to the roving wiretaps permitted by USAPA. (81) The Berger Court weighed the severity of the intrusion against the nature of the area invaded (a private home), and held the contemplated surveillance, long and continuous in scope, far too severe under the circumstances. (82) The Court drew contrasts between its holdings in this case and in Osborn, where the evidence sought directly reflected the commission of a specific offense and the warrant described the precise and discriminate circumstance of the eavesdropping. (83)
Little more than a year later the Court again considered the boundaries of permissible surveillance, this time in a case that did involve national security concerns. (84) The question in the case concerned the standard a District Court ought to use when evaluating the legality of evidence obtained through possibly illegal surveillance. (85) In that case, federal prosecutors accused a Soviet emigre of conspiring to transmit information to the Soviet Union pertaining per·tain
intr.v. per·tained, per·tain·ing, per·tains
1. To have reference; relate: evidence that pertains to the accident.
2. to the national security of the United States. (86) The Court granted certiorari certiorari
In law, a writ issued by a superior court for the reexamination of an action of a lower court. The writ of certiorari was originally a writ from England's Court of Queen's (King's) Bench to the judges of an inferior court; it was later expanded to include writs to resolve the question of whether the prosecution needed to turn over the records of the challenged surveillance to the trial judge for a limited, in camera inspection, or allow a more public examination including the defense. (87)
The Court, in Butenko, acknowledged that under Katz, it should read the Fourth Amendment to protect a person's private conversations as well as his private premises. (88) This harmonized har·mo·nize
v. har·mo·nized, har·mo·niz·ing, har·mo·niz·es
1. To bring or come into agreement or harmony. See Synonyms at agree.
2. Music To provide harmony for (a melody). with the Court's holding in Silverman, recognizing that the unlawful nature of the home invasion home invasion
Burglary of a dwelling while the residents are at home.
Noun 1. home invasion - burglary of a dwelling while the residents are at home formed the basis for excluding the evidence. (89) The federal prosecutors in Silverman, sounding a now-familiar refrain, argued that the evidence concerned matters of national security too delicate for argument in open court. (90) The Court overruled these claims, ordering the District Court to openly determine whether the evidence offended the Fourth Amendment and whether such a violation reflected upon the petitioner's conviction. (91) If the District Court determined that the evidence tainted taint
v. taint·ed, taint·ing, taints
1. To affect with or as if with a disease.
2. To affect with decay or putrefaction; spoil. See Synonyms at contaminate.
3. the conviction, it would order a new trial. (92) The Butenko case struck an important blow against government efforts to shroud in secrecy the circumstances by which the U.S. government conducted surveillance. (93)
Shortly thereafter, in 1972, the U.S. Supreme Court decided the landmark case of United States v. United States District Court United States District Court
In the U.S., any of the 94 trial courts of general jurisdiction in the federal judicial system. Each state, as well as the District of Columbia and the Commonwealth of Puerto Rico, has at least one federal district court. (the Keith case). (94) The Court here announced a significant boundary, refusing to extend the nascent "foreign intelligence exception" to include the warrantless surveillance of domestic persons in ordinary criminal investigations. (95) In Keith, prosecutors relied on warrantless electronic surveillance of an individual suspected of planning terrorist attacks on government offices. (96) Attorney General Mitchell approved the challenged wiretaps without judicial approval, relying on the power of the President to act in defense of national security, as exercised through the Attorney General. (97)
The Keith Court acknowledged, as the Court continues to, this Constitutional power of the President to obtain foreign intelligence information, but refused to allow the executive branch to assert this power to seek intelligence information not concerning the actions of a foreign power or its agents. (98) More than a quarter century later, the courts still regarded Keith as clearly establishing the necessity of a warrant for domestic security intelligence gathering, notwithstanding that notwithstanding; although.
See also: Notwithstanding the Court in that case declined to address issues "which may be involved with respect to activities of foreign powers or their agents." (99) The Keith Court actually ducked the foreign intelligence issue. (100) Nonetheless, Circuit courts applying Keith in ensuing en·sue
intr.v. en·sued, en·su·ing, en·sues
1. To follow as a consequence or result. See Synonyms at follow.
2. To take place subsequently. years started to recognize the existence of the "foreign intelligence" exception to the warrant requirement for searches occurring within the U.S. (101)
The last major pre-FISA case to address the foreign intelligence exception to the warrant requirement was United States. v. Truong Dinh Hung. (102) In that case the Attorney General authorized the surveillance of a citizen thought to be transmitting sensitive information to the government of North Vietnam North Vietnam: see Vietnam. . (103) The Truong Court reinforced the "primary purpose" test, holding that prosecutors could use certain types of warrantless evidence so long as their primary purpose in gathering the evidence was foreign intelligence surveillance. (104) The Court, however, still subordinated these foreign policy concerns partially to larger Fourth Amendment issues, and declined again to further extend the 'foreign intelligence' exception. (105)
V. THE FOREIGN INTELLIGENCE SURVEILLANCE ACT
The Foreign Intelligence Surveillance Act (FISA) of 1978 (106) is the often-litigated statute that authorizes the Executive branch to conduct electronic surveillance and physical searches for foreign intelligence purposes without a warrant. (107) It effectively codified cod·i·fy
tr.v. cod·i·fied, cod·i·fy·ing, cod·i·fies
1. To reduce to a code: codify laws.
2. To arrange or systematize. the "foreign intelligence exception" to the warrant requirement and established a secret court system (the FISC fisc
The treasury of a kingdom or state.
[French, from Latin fiscus, money basket, treasury.]
Noun 1. , or Foreign Intelligence Surveillance Court) to consider wiretap wiretap n. using an electronic device to listen in on telephone lines, which is illegal unless allowed by court order based upon a showing by law enforcement of "probable cause" to believe the communications are part of criminal activities. and surveillance requests made by Federal prosecutors. (108)
Congress passed FISA to bring to an end the nationwide disparity in the interpretation of various Supreme Court decisions relating to relating to relate prep → concernant
relating to relate prep → bezüglich +gen, mit Bezug auf +acc national security-related intelligence gathering. (109) As noted in the Bin Laden decision, the Circuit Court cases developing the foreign intelligence exception predated FISA. (110) While FISA governs the surveillance of agents of foreign powers, it is Title III Title III Program is a U.S. Federal Grant Program to improve education History
The Title III Program began as part of the Higher Education Act of 1965, which sought to provide support to strengthen various aspects of the schools through a formula grant program to accredited, , of the Omnibus Crime Control and Safe Streets Act of 1968 (OCCSA) that protects U.S. citizens, requiring that law enforcement officers obtain a traditional search warrant before undertaking surveillance. (111) This emergent and important dichotomy required the observance of a much higher procedural standard for non-foreign intelligence surveillance targets. (112)
When Congress enacted FISA in 1978, it increased the President's power, acting through the Attorney General and the Justice Department, to gather foreign intelligence information by electronic means. (113) FISA describes how foreign intelligence surveillance is to occur in the United States. (114) FISA also brings a degree of clarity to the conflicted area at the intersection of the President's foreign affairs power Under International Law a state has the right to enter into relations with other states. This power to conduct foreign affairs is one of the rights a state gains by attaining independence. and the Constitutional ban on unreasonable search and seizure. (115) The act explicitly provides the power to conduct electronic surveillance targeting a foreign power or the agent of a foreign power. (116) FISA's definition of "foreign power" includes not only foreign governments, but also terrorist organizations, foreign national factions, or foreign based political groups comprised of primarily non-U.S. persons. (117) Furthermore, FISA provides for a Foreign Intelligence Surveillance Court, to hear the surveillance applications made by federal law enforcement officials. (118) The proceedings of this court are necessarily secret, and a party seeking to challenge the validity of the surveillance can do no more than submit the request that the court conduct an in camera, ex-parte review of the surveillance application. (119) Although there is a Court of Review from the FISC, it heard not a single appeal from 1978 until 2002. (120)
In 1995, President Clinton acted to erect informational barriers among law enforcement agencies, intending to prevent the pollution of criminal investigations with evidence gathered by warrantless electronic surveillance and vice versa VICE VERSA. On the contrary; on opposite sides. . (121) By 1997, Circuit Courts interpreting FISA regarded it as "reasonable both in relation to the legitimate need of the Government for intelligence information and the protected rights of our citizens." (122)
VI. USAPA DRAMATICALLY EXPANDS FISA POWERS OF THE PRESIDENT
Frequent litigation left little doubt as to FISA's constitutionality as of September 11, 2001. (123) At the time of USAPA's passage, federal law provided for four basic categories of electronic surveillance: orders to intercept communications; search warrants; trap and trace orders; and subpoenas. (124) USAPA makes it easier to use FISA to gather information from all these categories. (125) Although USAPA affects at least 15 federal statutes, it most substantially alters FISA. (126) Besides modifying foreign intelligence procedures, USAPA relaxes the level of protection afforded certain types of electronically stored information traditionally considered sensitive or personal, and provides inter alia [Latin, Among other things.] A phrase used in Pleading to designate that a particular statute set out therein is only a part of the statute that is relevant to the facts of the lawsuit and not the entire statute. for the sharing of educational statistics with the FBI. (127)
Section 218 of USAPA significantly modifies FISA, doing away with the "primary purpose" test and replacing it with a "significant purpose" test. (128) The gathering of foreign intelligence no longer need be the primary thrust of the surveillance, but need only be a significant factor. (129) Even more striking, Section 206 provides authority for the FISC to grant so-called "roving wiretaps" not specific to a particular jurisdiction, telephone number or email address See Internet address. but which can cross jurisdictional boundaries. (130) This wide latitude effectively permits the surveillance of much otherwise lawful activity, giving rise to Constitutional concerns of overbreadth and vagueness. (131)
VII. USA PATRIOT ACT AND THE KONOP CASE
Another court construed and upheld Section 209 of USAPA. (132) Section 209, amending the Wiretap Act to eliminate "storage" from the definition of "wire communication," seriously vexes many civil libertarians. (133) By clarifying the distinction between a stored communication and one in transit, USAPA makes it easier for law enforcement officials to gain access to stored and unopened email and voicemail messages. (134) Illustrating the significance of this change, the progressive Ninth Circuit Court of Appeals held that a secure website located on a server is not in transmission but in storage, and thus the unauthorized viewing by the defendant's employer did not offend the Wiretap Act. (135)
VIII. THE FISC COURT OF REVIEW DECISION OF 2002
Importantly, the U.S. Foreign Intelligence Court of Review recently heard its first appeal since the 1978 passage of FISA, and its decision struck a decisive blow for the Bush-Ashcroft view of the post 9/11 civil liberties landscape. (136) Interestingly, procedural issues may prevent the issue from ever reaching the United States Supreme Court United States Supreme Court: see Supreme Court, United States. . (137) In In Re: Sealed Case 02-001, a three-judge panel considered certain restrictions imposed by FISC upon a surveillance request it had granted. (138) By invalidating in·val·i·date
tr.v. in·val·i·dat·ed, in·val·i·dat·ing, in·val·i·dates
To make invalid; nullify.
in·val the restrictions, the Court of Appeal addressed the long-standing separation of law enforcement and intelligence functions, holding no basis for its continued observance. (139)
Citing legislative history, the Court of Review held that FISA never intended to exclude use of FISA surveillance for criminal prosecution, and faulted Circuit Courts for relying on Truong (a pre-FISA case), Megahey, and other cases in applying the "primary purpose" test. (140) The court astonishingly a·ston·ish
tr.v. as·ton·ished, as·ton·ish·ing, as·ton·ish·es
To fill with sudden wonder or amazement. See Synonyms at surprise. held USAPA's explicit abrogation The destruction or annulling of a former law by an act of the legislative power, by constitutional authority, or by usage. It stands opposed to rogation; and is distinguished from derogation, which implies the taking away of only some part of a law; from Subrogation, of "primary purpose" as the ratification of a nullity nullity n. something which may be treated as nothing, as if it did not exist or never happened. This can occur by court ruling or enactment of a statute. The most common example is a nullity of a marriage by a court judgment.
NULLITY. . (141) The court did not stop at that, but continued to admonish the FISC court, noting that even its certification of purpose required under FISA was better judged by the Attorney General's articulation and not by the FISC court's inquiry. (142) The court then construed its own new construction of FISA, and held that it did not offend the Fourth Amendment. (143) The court concluded by implying that reliance on the faulty Truong doctrine may have resulted in the failure to anticipate the September 11, 2001 attacks. (144)
IX. USAPA CREATES DRAMATIC NEW LAW-ENFORCEMENT POWERS.
Section 802 of USAPA also defines a new crime of "domestic terrorism Noun 1. domestic terrorism - terrorism practiced in your own country against your own people; "the 1995 bombing of a federal building in Oklahoma City was an instance of domestic terrorism" ," which could include activities of many American protest groups that now engage in conduct arguably ar·gu·a·ble
1. Open to argument: an arguable question, still unresolved.
2. That can be argued plausibly; defensible in argument: three arguable points of law. "dangerous to human life." (145) USAPA significantly expands law enforcement powers in the domestic arena in areas not confined to foreign intelligence gathering. (146) Section 209 permits law enforcement to acquire stored wire communications like voicemail with a search warrant instead of an intercept order. (147)
Sections 219 ("Single jurisdiction search warrants for terrorism") and 220 ("Nationwide service of search warrants for electronic evidence") of the Act provide for the issuance of search warrants in a single jurisdiction that extend beyond the reach of that jurisdiction. (148) These warrants may issue in one jurisdiction and serve on an internet service provider Internet service provider (ISP)
Company that provides Internet connections and services to individuals and organizations. For a monthly fee, ISPs provide computer users with a connection to their site (see data transmission), as well as a log-in name and password. anywhere in the country, with no requirement that it specifically name that provider. (149) Section 213 further relaxes notification requirements attaching to search warrants, permitting law enforcement officers to "sneak and peek," notifying the subject of the warrant in a "reasonable period" instead of immediately, where the immediate notification of the subject would have "an adverse result." (150)
USAPA permits expanded use of trap and trace orders, altering the statutes to include email and electronic communications, as well as software processes and devices. (151) Courts authorizing these pen registers can enter ex-parte orders authorizing their use anywhere nationwide under the now-familiar standard of relevance to ongoing criminal investigation. (152)
Section 210 of USAPA alters the Electronic Communications Privacy Act
(1) (Confidentiality Integrity Authentication) The three important concerns with regards to information security. Encryption is used to provide confidentiality (privacy, secrecy). and NSA NSA
National Security Agency
Noun 1. NSA - the United States cryptologic organization that coordinates and directs highly specialized activities to protect United States information systems and to produce foreign during the 1970's. (156)
Section 203(a) of USAPA substantively modifies Rule 6 of the Federal Rules of Criminal Procedure, authorizing the disclosure of grand jury information to intelligence services. (157) The section also provides for disclosure to law enforcement any foreign intelligence information whether or not concerning a U.S. person relating to the ability of the U.S. to protect against actual or potential attack. (158) Section 203(b) also allows law enforcement officials to provide the CIA with information intercepted from electronic communications. (159) Section 901 of the Act also moves the responsibility for collecting and disseminating intelligence information from the Attorney General to the Director of the CIA. (160)
The Act contains a number of provisions that do not explicitly address terrorism per se but nonetheless have serious Fourth Amendment implications. (161) Various portions of USAPA amend the U.S. Code A multivolume publication of the text of statutes enacted by Congress.
Until 1926, the positive law for federal legislation was published in one volume of the Revised Statutes of 1875, and then in each sub-sequent volume of the statutes at large. to allow law enforcement officers acting under color of law The appearance of a legal right.
The act of a state officer, regardless of whether or not the act is within the limits of his or her authority, is considered an act under color of law if the officer purports to be conducting himself or herself in the course of official to intercept wire transmissions made to or from a particular computer, so long as the officer is lawfully engaged in an investigation, and reasonably believes that the transmissions are relevant to the investigation. (162) Another provision without an overt terrorism-related application provides for the adding of samples to a DNA DNA: see nucleic acid.
or deoxyribonucleic acid
One of two types of nucleic acid (the other is RNA); a complex organic compound found in all living cells and many viruses. It is the chemical substance of genes. database for those convicted of violent crimes. (163) Title II further alters The Computer Fraud and Abuse Act The Computer Fraud and Abuse Act is a law passed by the United States Congress in 1986 intended to reduce "hacking" of computer systems. It was amended in 1994, 1996 and in 2001 by the USA PATRIOT Act. , allowing wiretaps to be used in the prosecuting of computer-based crimes. (164)
Section 507 mandates the disclosure of educational records "relevant to ... an act of domestic or international terrorism Noun 1. international terrorism - terrorism practiced in a foreign country by terrorists who are not native to that country
act of terrorism, terrorism, terrorist act - the calculated use of violence (or the threat of violence) against civilians in order to attain ." (165) Section 508 amends the (now repealed) National Education Statistics Act of 1994, making it easier for the Attorney General to gain access to educational statistics upon certification from the Attorney General that there are "clear and articulable ar·tic·u·la·ble
That can be articulated: vague, barely articulable thoughts. facts" showing the relevance of the information to an act of domestic or international terrorism. (166) Some of the most controversial aspects of the bill would permit law enforcement access to public library records. (167) The roving wiretaps permitted by Title II, with their relevant expansions of the information accessible via trap and trace orders, would allow law enforcement officials with a FISC order to access user records for publicly accessible internet terminals and gather lists of email addresses and URLs visited. (168)
One recent lawsuit challenged Section 215 of Title II of the Act. (169) The Plaintiffs in that case, represented by the American Civil Liberties Union American Civil Liberties Union (ACLU), nonpartisan organization devoted to the preservation and extension of the basic rights set forth in the U.S. Constitution. , allege that the section unconstitutionally relaxes evidentiary ev·i·den·tia·ry
1. Of evidence; evidential.
2. For the presentation or determination of evidence: an evidentiary hearing.
Adj. 1. standards, permitting the FBI to obtain warrants without showing probable cause. (170)
In addition to modifying other national security-related functions of law enforcement already discussed, the Act contains many provisions relating to increased emphasis on technological means for ensuring border security. (171) Particularly, the bill authorizes the establishment of a creation of an integrated automated fingerprint system for points of entry. (172) Congress and the President placed provisions in the act urging the implementation of machine-readable passports. (173) Title V ("Removing obstacles to investigating terrorism") presages increased reliance on technological means to manage Federal law enforcement projects. (174) Title VIII ("Strengthening the criminal laws against terrorism") mandates activity to deter cyberterrorism See cyberwar and information warfare. , (175) and supports the development of new Federal cybersecurity forensic capabilities. (176)
Certain provisions of USAPA are unconstitutional to the extent that they cast too wide a net over too much constitutionally-protected activity. By relaxing warrant requirements, the Congress evokes memories of dark times, when law enforcement officials spied spied
Past tense and past participle of spy. on Americans based solely on their political associations. Every effort must be made to protect the delicate balance between fundamental liberties and national security, notwithstanding the tremendous fear of terrorism. It remains important for the current judiciary to remain a bulwark against a return to some of our most shamefully repressive periods. The pace of technological advancement must not eclipse the pace of legislative and judicial and executive evolution.
Portions of USAPA are reasonable inasmuch as in·as·much as
1. Because of the fact that; since.
2. To the extent that; insofar as.
1. since; because
2. they enhance law enforcement's power to communicate and efficiently prosecute suspected terrorists, however "sneak-and-peek" warrants are anathema anathema (ənă`thĭmə) [Gr.,=something set up; dedicated to a divinity as a votive offering], term that came to denote something devoted to a divinity for destruction. In the Bible, the term is herem. to the established principle that notice be given to the suspect that a search has been conducted. It is also unconstitutionally overbroad to define terrorism in such a way as to encompass so much legal and benign political activity. It is likewise unconstitutional and un-American to apply warrants so vague they place no constraints upon the prosecution, that require no offense to be specified, no particular party or evidence to be targeted. Such provisions of the Act ought to be construed severely by the courts. If an officer of the law may obtain a warrant upon speculation as to relevancy to a criminal investigation, then both he and the court violate the Fourth Amendment. Courts should invalidate in·val·i·date
tr.v. in·val·i·dat·ed, in·val·i·dat·ing, in·val·i·dates
To make invalid; nullify.
in·val provisions of USAPA permitting "roving wiretaps," but it is unlikely that they will do so in the short term. Yet, the great strength of the Constitution is its flexibility, and it will endure. The pendulum swings both ways, and now it is upon us to guard our liberties more closely so that they will remain. And so we shall.
(1.) Attributed to Benjamin Franklin.
(2.) United States. v. United States District Court for the Eastern District of Michigan The United States District Court for the Eastern District of Michigan is the Federal district court with jurisdiction over of the eastern portion of the state of Michigan. , 407 U.S. 297, 314 (1972) [hereinafter here·in·af·ter
In a following part of this document, statement, or book.
Formal or law from this point on in this document, matter, or case
Adv. 1. Keith] (Powell, J.).
(3.) See Katz v. United States Katz v. United States, 389 U.S. 347 (1967) was a United States Supreme Court decision that extended the Fourth Amendment protection from unreasonable searches and seizures to protect individuals in a telephone booth from wiretaps by authorities without a warrant. , 389 U.S. 347, 364 (1967) (discussing the long-running Presidential sanctioning of wiretapping in national security cases). See also John Borland & Lisa Bowman, Politics: Weighing Security Against Liberties, CNET (body) CNET - Centre national d'Etudes des Telecommunications. The French national telecommunications research centre at Lannion. News.com, August 27, 2002, at http://news.com.com/2009-1001-954565.html. The article quotes Jonathan Zittrain Jonathan Zittrain (born 1969) holds the Chair in Internet Governance and Regulation at Oxford University and is a principal of the Oxford Internet Institute. He is also the Jack N. & Lillian R. , the co-director of Harvard University Harvard University, mainly at Cambridge, Mass., including Harvard College, the oldest American college. Harvard College
Harvard College, originally for men, was founded in 1636 with a grant from the General Court of the Massachusetts Bay Colony. Law School's Berkman Center for Internet and Society
v. cen·tral·ized, cen·tral·iz·ing, cen·tral·iz·es
1. To draw into or toward a center; consolidate.
2. database logs are commonplace, and that even massive research databases like Lexis-Nexis are working more closely with the Federal Government since September 11th, 2001, providing user-related information. Id.
(4.) Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct ob·struct
To block or close a body passage so as to hinder or interrupt a flow.
ob·structive adj. Terrorism Act The Terrorism Act may refer to legislation in various countries: South Africa
(5.) See, e.g., Ashcroft Defends USA Patriot Act, REUTERS, July 21, 2003, http://www.dailyweb.info/forums/showthread.php?t=215&goto=nextnewest (highlighting the growing debate over USAPA's reach). The Republican-led state legislature A state legislature may refer to a legislative branch or body of a political subdivision in a federal system.
The following legislatures exist in the following political subdivisions:
(6.) See, e.g., John Podesta podesta
(Italian: “power”) In medieval Italian communes, the highest judicial and military magistrate. The office was instituted by Frederick I Barbarossa in an attempt to govern rebellious Lombard cities. , USA Patriot Act, The Good, the Bad and the Sunset, HUMAN RIGHTS, Winter, 2002, at http://www.abanet.org/irr/hr/winter02/podesta.html (describing the provisions of USAPA relating to electronic surveillance as a "sound effort" notwithstanding the haste of the laws passage).
(7.) See Timothy Lynch, Policy Analysis #443, Breaking the Vicious Cycle Noun 1. vicious cycle - one trouble leads to another that aggravates the first
positive feedback, regeneration - feedback in phase with (augmenting) the input : Preserving our Liberties While Fighting Terrorism, Cato Institute "Cato" redirects here. For Cato, see Cato.
The Institute's stated mission is "to broaden the parameters of public policy debate to allow consideration of the traditional American principles of limited government, individual liberty, free markets, and peace" by striving "to achieve , June 26, 2002 at 8 (on file with author). The author discusses generally the dilution of warrant requirements and probable cause requirements, citing Yick Wo v. Hopkins An 1896 U.S. Supreme Court decision, Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886), held that the unequal application of a law violates the equal protection clause of the Fourteenth Amendment to the U.S. , 118 U.S. 356 (1886), and Johnson v. United States, 333 U.S. 10 (1948), among others, in support of the proposition. Id. The article sets forth an overview of what the author perceives to be an agenda of expanded law enforcement power attributed to the Bush administration. Id.
(10.) See infra [Latin, Below, under, beneath, underneath.] A term employed in legal writing to indicate that the matter designated will appear beneath or in the pages following the reference.
infra prep. note 16 and accompanying text (describing the alleged abuses committed under USAPA as reported by the Department of Justice's Inspector General). See, e.g., Philip Shenon, Report on USA Patriot Act Alleges Civil Rights Violations, N.Y. TIMES, July 21, 2003, at A1. A recent report by the US Inspector General presented to Congress in July, 2003, and heavily commented on by national media, accuses the Justice Department of abusing its new powers in dozens of instances. Id. Many of the abuses complained of occurred in the Bureau of Prisons, the department having custody of most of the immigrants rounded up in the months following September 11, 2001. Id. In one frightening instance a federal prison doctor allegedly told an inmate that if "I was in charge, I would execute every one of you." Id. See infra note 16 and accompanying text (describing the alleged abuses committed under USAPA as reported by the Department of Justice's Inspector General).
(11.) See Curt Anderson Curt Anderson, is an American politician, lawyer and former broadcast journalist. Anderson, the chairman of the Baltimore City Delegation,  was first elected to the Maryland House of Delegates in 1983. After serving 12 years he was elected again in 2002. , Appeals Panel Rejects Secret Court's Limitations on Terrorist Wiretaps, ASSOCIATED PRESS Associated Press: see news agency.
Associated Press (AP)
Cooperative news agency, the oldest and largest in the U.S. and long the largest in the world. , Nov. 18, 2002, at http://www.boston.com/news/daily/18/111802_spy_court.htm (discussing the decision of the Foreign Intelligence Surveillance Court of Review to reject certain restrictions on electronic surveillance as violative of USAPA).
(12.) See Robin Mejia, More Surveillance on the Way, THE NATION, November 11, 2002, at http://www.thenation.com/doc.mhtml?i=20021111&s=mejia20021030&c=1. Mejia discusses letters from the Attorney General's office that describe "anecdotal" evidence that ISPs have begun to freely turn over records to law enforcement officers without warrants. Id. The article describes USAPA as the first step in a program of civil liberty reductions, in conjunction with the pending Cyber Security Enhancement Act (CSEA CSEA California School Employees Association
CSEA Cyber Security Enhancement Act of 2001 (US)
CSEA Child Support Enforcement Agency
CSEA California State Employees Association
CSEA California Society of Enrolled Agents ), in itself an interesting piece of legislation which would further reduce the protection of electronic records. Id. The CSEA provides that ISPs could turn over records upon belief that the disclosure would prevent some future danger. Id. Further, the need for a reasonable belief that the disclosure is related to the prevention of the danger is reduced to a simple requirement that the ISP (1) See in-system programmable.
(2) (Internet Service Provider) An organization that provides access to the Internet. Connection to the user is provided via dial-up, ISDN, cable, DSL and T1/T3 lines. be acting in "good faith.." Id.
(13.) See, e.g., In re: Sealed Case 02-001, 310 F.3d 717, 722-725 (D.C. Cir. 2002) [hereinafter Sealed Case], infra notes 136-144 and accompanying text (describing the deference accorded to the executive in matters of national security).
(14.) See Muslim Comm. Assoc. v. Ashcroft, C.A. No. 03-72913 (E.D. Mich. filed July 30, 2003). The lawsuit challenges the constitutionality of Section 215 of the Act, which permits, according to according to
1. As stated or indicated by; on the authority of: according to historians.
2. In keeping with: according to instructions.
3. the Plaintiffs, prosecutors to gather evidence of people not suspected of criminal activity. Id. at [paragraph] 1. See also Electronic Privacy and Information Center, The USA PATRIOT Act, at http://www.epic.org/privacy/terrorism/usapatriot/ (providing a concise overview of USAPA's impact on the evidence gathering provisions of both the Electronic Communications Privacy Act (ECPA (Electronic Communications Privacy Act of 1986) Signed into law in 1986, the ECPA extends legal protection against wiretapping and other forms of unauthorized interception to e-mail, cellular telephones, pagers, computer transmissions and communications ), 18 U.S.C. [section][section] 2510 et. seq. (2000 & Supp. 2002), and the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. [section][section] 1801 et seq et seq. (et seek) n. abbreviation for the Latin phrase et sequentes meaning "and the following." It is commonly used by lawyers to include numbered lists, pages or sections after the first number is stated, as in "the rules of the road are found in Vehicle Code . (2000 & Supp. 2003).
(15.) See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 522-23 (1985) (granting Attorney General qualified immunity Qualified immunity is a doctrine in United States law providing immunity from suit to government officials performing discretionary functions when their action did not violate clearly established law. Qualified immunity was created by the U.S. from suit in case concerning warrantless wiretapping in national security case). The Court in this case stated: "National security tasks are carried out in secret ... [u]nder such circumstances, it is far more likely that actual abuses will go uncovered then that fancied abuses will give rise to unfounded and burdensome litigation." 472 U.S. at 522. The Court also relied heavily on Keith for the proposition that national security cases propounded unique fusions of first and fourth amendment concerns and notes that the government even when acting with benign motives is likely to abuse its power under such a vague notion as that of "national security." 472 U.S. at 523 (citing Keith, 407 U.S. at 313-14).
(16.) See U.S. DEPT dept department . OF JUSTICE OFFICER OF THE INSPECTOR GENERAL, REPORT TO CONGRESS ON IMPLEMENTATION OF SECTION 1001 OF THE USA PATRIOT ACT, July 17, 2003, http://www.usdoj.gov/oig/special/03-07/index.htm. The Department of Justice Inspector General's Office reports 34 of what it describes to be credible Patriot Act complaints, of a total 1,073 reported complaints allegedly invoking the Patriot Act. Id. at 6. The Inspector General reports opening only six new Patriot Act-related investigations, continuing eight and closing three investigations. Id. at 7. Of the remaining claims, it referred twenty-eight to internal affairs Internal affairs may refer to:
tr.v. de·tained, de·tain·ing, de·tains
1. To keep from proceeding; delay or retard.
2. To keep in custody or temporary confinement: in the post-September 11 time period. Id. at 12.
(17.) See, e.g., How the USA PATRIOT Act puts the CIA back in the Business of Spying on Americans, at http://www.aclu.org/congress/1102301j.html. [hereinafter ACLU Statement] (discussing historical reasons for restrictions on CIA's domestic surveillance activities).
(18.) See United States v. Truong Dinh Hung, 629 F.2d 908, 913-14 (4th Cir. 1980) (allowing admission of evidence gathered under reasonable warrantless searches, but disallowing evidence gathered after the primary purpose of the investigation became criminal in nature).
(19.) See Sealed Case, 310 F.3d at 722-25 (illustrating the waning distinction between foreign intelligence surveillance and ordinary criminal surveillance activities for purposes of Constitutional analysis).
(21.) Id. (discussing the historical evolution of the warrant requirement in foreign intelligence surveillance cases).
(22.) U.S. CONST CONST Construction
CONST Under Construction
CONST Commission for Constitutional Affairs and European Governance (COR) . amend. IV. See also Muslim Comm. Assoc., discussed supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process. at note 14.
(23.) See Katz v. United States, 389 U.S. 347, 353 (1967) (discussing the evolution of Fourth Amendment concerns). That Court summarized the original character of Fourth Amendment inquiry, as embodied by the Olmstead holding. See infra notes 32, 62-63 and accompanying text (discussing the Olmstead case). The Court characterized the original mode of inquiry as encompassing a primarily physical realm, while noting that contemporary inquiry focused on the person and not the place. Katz, 389 U.S. at 351. Justice White would not have read the case to affect cases of national security. Id. at 363. Justice Black's dissent points out the impossibility of the Constitution's drafters having foreseen the tapping of telephone wires as such technology was fantastic at the time. Id. at 365.
(24.) See Katz, 389 U.S. at 365. Justice Black's dissent attempts at some length to apply the Fourth Amendment as originally intended to the facts at hand, acknowledging that the Fourth Amendment was to be given a "liberal construction." Id.
(25.) See, e.g., Secretary of Transportation Norman Mineta, Mineta Sees Acts of Friendship Toward Arab-Americans and Muslims, Remarks at University of Rochester The University of Rochester (UR) is a private, coeducational and nonsectarian research university located in Rochester, New York. The university is one of 62 elected members of the Association of American Universities. Annual Meliora Weekend, October 12, 2001, at http://usinfo.state.gov/usa/civilrights/mineta.htm (describing how Presidents throughout history have abrogated civil liberties in the name of protecting national security, and citing the internment internment, in international law, detention of the nationals or property of an enemy or a belligerent. A belligerent will intern enemy merchant ships or take them as prize, and a neutral should intern both belligerent ships that fail to leave its ports within a of Japanese-Americans during the Second World War as egregious e·gre·gious
Conspicuously bad or offensive. See Synonyms at flagrant.
[From Latin examples).
(26.) See id.
(27.) See WILLIAM REHNQUIST Noun 1. William Rehnquist - United States jurist who served as an associate justice on the United States Supreme Court from 1972 until 1986, when he was appointed chief justice (born in 1924)
Rehnquist, William Hubbs Rehnquist , ALL THE LAWS BUT ONE, 224-25 (2000) (writing that "[t]here is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently from their predecessors. It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. But it is both desirable and likely that more careful attention will be paid by the courts to the basis for the government's claims of necessity as a basis for curtailing civil liberty"). The Chief Justice's book is as comprehensive an outline as one would wish to see addressing the question of where to set the balance between civil liberties and order during wartime, addressing Lincoln's suspension of habeas corpus habeas corpus (hā`bēəs kôr`pəs) [Lat.,=you should have the body], writ directed by a judge to some person who is detaining another, commanding him to bring the body of the person in his custody at a specified time to a . Id. at 11-26. The internment of Japanese-Americans during World War II. Id. at 184-203. In addition, the three-year period during which the State of Hawaii was ruled by martial law martial law, temporary government and control by military authorities of a territory or state, when war or overwhelming public disturbance makes the civil authorities of the region unable to enforce its law. . Id. at 212-18.
(28.) See, e.g., Nancy Chang, SILENCING POLITICAL DISSENT Political dissent refers to any expression designed to convey dissatisfaction with or opposition to the policies of a governing body. Such expression may take forms from vocal disagreement to civil disobedience to the use of violence. : POST SEPTEMBER 11 ANTITERRORISM an·ti·ter·ror·ist
Intended to prevent or counteract terrorism; counterterror: antiterrorist measures.
an MEASURES THREATEN OUR CIVIL LIBERTIES (2002) (discussing the shift towards greater law enforcement powers). One such willing and receptive Assistant Attorney General, Daniel J. Bryant, of the United States Department of Justice “Justice Department” redirects here. For other uses, see Department of Justice.
The United States Department of Justice (DOJ) is a Cabinet department in the United States government designed to enforce the law and defend the interests of the United States , sent a letter to Senate leaders considering USAPA, openly urging the abrogation of the Fourth Amendment in favor of warrantless searches. Id.
(29.) See id. See also USA PATRIOT Act Boosts Traditional Government Powers While Cutting Back on Traditional Checks and Balances, at http://www.aclu.org/congress/1110101a.html. [hereinafter ACLU Analysis] (discussing concisely the major concerns of civil libertarians with regards to USAPA's impact on constitutionally protected privacy rights). Id.
(30.) See, e.g., Chimel v. California Chimel v. California, 395 U.S. 752 (1969), was a case in which the United States Supreme Court held that police officers could search only within the immediate area of a suspect who was being arrested. , 395 U.S. 752, 760-61 (1969) ("The (Fourth) Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence.").
(31.) See id.
(32.) See United States v. Olmstead, 277 U.S. 438, 466 (1928) (declining to extend to telephone conversation the same Fourth Amendment protection it accorded to sealed envelopes containing letters).
(33.) Ellsberg v. Mitchell, 709 F.2d 51, 66-68 (D.C. Cir. 1983) (holding that to state a prima facie [Latin, On the first appearance.] A fact presumed to be true unless it is disproved.
In common parlance the term prima facie is used to describe the apparent nature of something upon initial observation. constitutional violation it is not necessary for the plaintiff to prove that the challenged surveillance was acquired unlawfully, rather the burden is on the defendant to show that the evidence was gathered under the 'foreign intelligence' exception).
(34.) See Katz, 389 U.S. at 354-55.
(38.) Bell v. Wolfish Bell v. Wolfish, 441 U.S. 520 (1979), is a case in which the United States Supreme Court found that it was not a violation of the Fourth Amendment to perform body cavity searches, strip searches, and the like on persons being held in prison pending a , 441 U.S. 520, 559 (1979) (collecting cases) (describing the test of reasonableness as being "not capable of precise definition or mechanical application").
(42.) Id. at 559.
(43.) See Katz, 389 U.S. at 353. "[O]nce it is recognized that the Fourth Amendment protects people and not simply areas--against unreasonable search and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure." Id. (quotation marks quotation marks
the punctuation marks used to begin and end a quotation, either `` and '' or ` and '
quotation marks npl → comillas fpl
(44.) See id.
(45.) See, e.g., Truong, 629 F.2d at 913-14. Truong is now abrogated by the FISC Court of Review decision in Sealed Case. See infra notes 136-144. Cf. Zweibon v. Mitchell, 516 F.2d 594, 613-14 (D.C. Cir. 1975) (en banc [Latin, French. In the bench.] Full bench. Refers to a session where the entire membership of the court will participate in the decision rather than the regular quorum. In other countries, it is common for a court to have more members than are ) (containing dicta Opinions of a judge that do not embody the resolution or determination of the specific case before the court. Expressions in a court's opinion that go beyond the facts before the court and therefore are individual views of the author of the opinion and not binding in subsequent cases in the plurality opinion It has been suggested that this article or section be merged with , and into . suggesting that "absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional."). See also discussion infra note 18 (discussing circumstances under which courts will admit the fruits of warrantless searches prior to USAPA).
(46.) See id.
(47.) USAPA, P.L. No. 107-56, 115 Stat. 272 (2001).
(48.) P.L. 107-56, Title II, [section] 203(a), 115 Stat. 278 (2001) codified at FED. R. CRIM CRIM Criminal
CRIM Computer Research Institute of Montreal
CRIM Centro de Recaudación de Ingresos Municipales (Municipal Internal Revenue Center, San Juan)
CRIM Centre de Recherche en Ingénierie Multilingue . P. 6; P.L. 107-56, Title II, [section] 219, 115 Stat. 291 (2001) codified at FED. R. CRIM. P. 41.
(49.) P.L. 107-56, Title II, at [section][section] 206-208, 214, 215, 218, 225 (2001) (codified as amended at 50 U.S.C. [section] 1801 et seq. (2000 & Supp. 2003)).
(50.) P.L. 107-56, Title II, at [section][section] 205, 208, 210, 211, 213, 216, 224 (2001). Section 224 is the sunset provision A statutory provision providing that a particular agency, benefit, or law will expire on a particular date, unless it is reauthorized by the legislature.
Federal and state governments grew dramatically in the 1950s and 1960s. itself, making a full forty percent of the Title II provisions permanent. Section 224 further exempts from the sunset provisions any investigations ongoing at the time of sunset. Id. at [section] 224.
(51.) USAPA, P.L. 107-56, Title I, [section] 102 (2001) ("Sense of Congress condemning discrimination against Arab and Muslim Americans").
(52.) Id. at Title III, [section] 322 ("Corporation represented by a fugitive").
(53.) Id. at Title III ("International Money Laundering The process of taking the proceeds of criminal activity and making them appear legal.
Laundering allows criminals to transform illegally obtained gain into seemingly legitimate funds. Abatement and Anti-Terrorist Financing Act of 2001").
(54.) Id. at Title IV ("Protecting the Border").
(55.) Id. at Titles V ("Removing Obstacles to Investigating Terrorism"), VII ("Increased Information Sharing See data conferencing. for Critical Infrastructure Protection Department of Defense (DOD) program to identify and protect assets critical to the Defense Transportation System. Loss of a critical asset would result in failure to support the mission of a combatant commander. ") and IX ("Improved Intelligence").
(56.) See generally USAPA, P.L. 107-56, Title III (2001). Banks are scrambling to assemble compliance procedures to deal with the Act's measures, designed to make it more difficult for terror suspects to move money around electronically. See Barbara Pickney, Trustco at Top of List No One Wants to Make, THE BUSINESS REVIEW, Sept. 27, 2002, at http://albany.bizjournals.com/albany/stories/2002/09/30/story1.html. Trustco Bank N.A. has become the first bank cited under USAPA for violating provisions designed to detect and prevent money laundering. Id.
(57.) See United States v. Reid, 206 F. Supp. 2d 132, 138-42 (D. Mass. 2002) (citing the Dictionary Act at 1 U.S.C. [section] 1 et seq. (2000), finding that the definition of the term "vehicle" did not include airliners for the purpose of imposing criminal liability). This early embarrassment occurred during the prosecution of a man who attempted to down a transatlantic flight | Transatlantic flight is any flight of an aircraft, whether fixed-wing aircraft, balloon or other device, which involves crossing the Atlantic Ocean — with a starting point in North America or South America and ending in Europe or Africa, or vice versa. with crude bombs concealed in his sneakers sneakers
US, Canad, Austral & NZ canvas shoes with rubber soles
sneakers npl (US) → zapatos mpl de lona; zapatillas fpl , when Federal prosecutors were forced to drop a count from their indictment based purely on the drafting of one section. Id. See also Senate Report No. 107-166, To Clarify the Definition of "Vehicle" for Purposes of Criminal Penalties Relating to Terrorist Attacks and Other Acts of Violence Against Mass Transportation Systems, S. REP. NO. 107-166 (2002).
(58.) See id. (highlighting the unforeseen intricacies of overhauling entire complexes of national security policies and regulations).
(59.) See Berger v. New York, 388 U.S. 41, 45 (1967) (citing 1862 Cal. Stat., p. 288, CCLXII). As early as 1862 the state of California found it necessary to prohibit the electronic interception of telegraph messages, made possible by the nascent technology known as electricity. Id.
(60.) The Berger opinion contains an excellent overview of the history of both eavesdropping and wiretapping through the ages, noting that "this activity has been with us for three-quarters of a century." Berger, 388 U.S. at 46.
(61.) See, e.g., Sealed Case, 310 F.3d at 725-26 (discussing the evolution of warrantless wiretapping doctrine).
(62.) Olmstead, 277 U.S. at 466. This was a prohibition-era case leading to a string of cases in which the Court focused on whether or not there had been a physical intrusion onto a premises. See infra notes 63-68 and accompanying text (discussing the physical trespass doctrine). In another case the surreptitious SURREPTITIOUS. That which is done in a fraudulent stealthy manner. recording of conversations was held to be quite acceptable where the microphone was placed against a wall. Goldman v. United States, 316 U.S. 129, 133 (1942). Accord On Lee v. United States, 343 U.S. 747, 751-52 (1952).
(63.) Olmstead, 277 U.S. at 466.
(64.) Silverman v. United States, 365 U.S. 505, 510 (1961) (discussing the "physical trespass" doctrine).
(65.) Keith, 407 U.S. at 310-11. (discussing the ways use of warrantless electronic surveillance had been sanctioned continuously since July of 1946). Herbert Brownell, Attorney General under Eisenhower, was up front about his support for the practice, writing law review articles on the topic). See also Herbert Brownell, The Public Security and Wiretapping, 39 CORNELL L. REV. 195, 202 (1954).
(66.) Silverman, 365 U.S. at 511-12 (Douglas, J. dissenting) (wrestling with the dilemma of how to distinguish equivalent invasions of privacy distinguished by inches, where the placing of a microphone on a surface is permitted but the driving of the microphone into a surface is not permitted). The Court held unconstitutional the making by law enforcement of certain recordings by the driving of a microphone through a party wall and into a heating duct, thus constituting a trespass. Id. See also Goldman, discussed supra note 62 and accompanying text.
(67.) Silverman, 365 U.S. at 511-12 (discussing the shortcomings A shortcoming is a character flaw.
Shortcomings may also be:
1. Of or relating to talismans: talismanic formulas.
2. solution to every Fourth Amendment problem." Katz, 389 U.S. at 352 (internal citations omitted).
(68.) Silverman, 365 U.S. at 511-12.
(69.) United States v. Katz, 389 U.S. 347, 349 (1967).
(70.) Id. at 350. The Court further strengthened its decision in Silverman by its rejection of the government's reliance on the absence of physical intrusion as being the determinative factor. Id.
(71.) Id. at 351. Refreshingly, the Court by 1967 had come to recognize the "vital role that the public telephone has come to play in private communication." Id. at 352.
(72.) Katz, 389 U.S. at 356 (acknowledging that the agents had acted with restraint and pointed to the ease with which they could have obtained a warrant for the surveillance). The Court reiterated the need for the interposition in·ter·pose
v. in·ter·posed, in·ter·pos·ing, in·ter·pos·es
a. To insert or introduce between parts.
b. To place (oneself) between others or things.
2. of a judicial officer between the citizen and the police. Id. at 357 (citing its decision in Wong Sun v. United States, 371 U.S. 471, 481-82 (1963).
(73.) Katz, 389 U.S. at 353 (holding "[t]he fact that the electronic device employed to achieve [the surveillance] did not happen to penetrate the wall of the booth can have no constitutional significance").
(74.) Berger, 388 U.S. at 62-63 (1967). The Court certainly started its analysis from scratch, noting at the outset that "eavesdropping is an ancient practice which at common law was condemned as a nuisance." 388 U.S. at 45 (citing 4 Blackstone, Commentaries 168).
(75.) Berger, 388 U.S. at 62-63. The Supreme Court (Clark, J.) also held that the law violated the Fourth and Fourteenth Amendments, but rejected Fifth and Ninth Amendment challenges. Berger, 388 U.S. at 44.
(76.) Berger, 388 U.S. at 55-56. The Court found many problems with the New York law, finding that although the law did impose the neutral magistrate, the failure to provide for any particularization par·tic·u·lar·ize
v. par·tic·u·lar·ized, par·tic·u·lar·iz·ing, par·tic·u·lar·iz·es
1. To mention, describe, or treat individually; itemize or specify.
2. in terms of expected fruit was (among other factors) fatal. Id.
(77.) Berger, 388 U.S. at 54. "It permits the issuance of the order, or warrant for eavesdropping, upon the oath of the attorney general, the district attorney or any police officer above the rank of sergeant stating that there is reasonable ground to believe that evidence of crime may be thus obtained." (internal quotes omitted).
(78.) Id. at 55.
(79.) Id. at 46-49 (discussing new technologies and their implications for the Fourth Amendment). Justice Clark attempts to apply this technological drift to the original language of the Fourth Amendment after discussing at length the origins of eavesdropping, wiretapping and the public policy reasons for constraining the use of those techniques. Id. at 49. The Court in that case wrote, "the law, though jealous of individual privacy, has not kept pace with these advances in scientific knowledge." Id.
(80.) Berger, 388 U.S. at 55. This failure of particularization results in a failure of probable cause for the warrant, in that no "man of reasonable caution [would] believe an offense has been or is being committed." 388 U.S. at 55.
(81.) Berger, 388 U.S. at 58.
(82.) Id. at 58-62. The Court ultimately concluded that "we cannot forgive the requirements of the Fourth Amendment in the name of law enforcement. Id. at 62-63.
(83.) 388 U.S. at 64, (Douglas, J. concurring) (citing Osborn v. United States, 385 U.S. 323, 349-54 (1966)). Douglas was pleased to be finally overruling o·ver·rule
tr.v. o·ver·ruled, o·ver·rul·ing, o·ver·rules
a. To disallow the action or arguments of, especially by virtue of higher authority: Olmstead and bringing electronic surveillance within the purview The part of a statute or a law that delineates its purpose and scope.
Purview refers to the enacting part of a statute. It generally begins with the words be it enacted and continues as far as the repealing clause. of the Fourth Amendment. Id.
(84.) Alderman ALDERMAN. An officer, generally appointed or elected in towns corporate, or cities, possessing various powers in different places.
2. The aldermen of the cities of Pennsylvania, possess all the powers and jurisdictions civil and criminal of justices of the v. United States, 394 U.S. 165 (1969) [hereinafter Butenko].
(85.) Id. at 167.
(86.) Id. at 169.
(87.) Id. at 170.
(88.) Butenko, 394 U.S. at 178.
(90.) Id. at 181.
(91.) Id. at 186.
(93.) Butenko, 394 U.S. at 183 (noting that "adversary proceedings are a major aspect of our system of criminal justice," and that particularly where the inquiry is intensely factual it is necessary to preserve the adversarial nature of the proceedings).
(94.) Keith, supra note 2, at 297 (quoting Justice Powell).
(95.) Id. (permitting warrantless surveillance where the primary purpose of the investigation was to gather intelligence relating to the activities of a foreign power or its agents but requiring a warrant under almost all circumstances to spy upon citizens in ordinary criminal matters). Powell's reasoning resounds still today, although provisions of the PATRIOT Act echo the opinion of Keith. See 407 U.S. at 321 (stating that "we [the Court] do [not] think the Government's domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive pre·sump·tive
1. Providing a reasonable basis for belief or acceptance.
2. Founded on probability or presumption.
pre·sump validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review"). 407 U.S. at 321.
(96.) Id. at 300.
(97.) Id. at 301. The Attorney General submitted an affidavit and a sealed exhibit containing the logs of the surveillance. Id. The government proffered several justifications for the surveillance, all of which the Court rejected; first, that judicial review would obstruct the President; second, that the subject of the intelligence was not relative to a primarily criminal investigation; third, that courts would not have the expertise to determine whether probable cause existed; and finally, the federal government argued that disclosure to a judge of information regarding the search would create national security hazards. Id. at 318-19.
(98.) Keith, 407 U.S. at 302-05 (interpreting the statute as merely disclaiming an intent to limit any power the President possessed under the Constitution). Justice Powell's opinion read the Government's challenge as being an opportunity to answer a "question left open by Katz: "whether safeguards other than prior authorization prior authorization,
n See predetermination.
prior authorization Health insurance A cost containment measure that provides full payment of health benefits only if the hospitalization or medical treatment has been by a magistrate would satisfy the Fourth Amendment in a situation involving the national security ..." Id. at 309, quoting Katz, supra note 23, at 358, n. 23.
(99.) United States v. Bin Laden, 126 F. Supp. 2d 264, 271 (S.D.N.Y. 2000) (extending reach of 'foreign intelligence' exception to include search of American citizen's home in foreign country).
(100.) Keith, 407 U.S. at 321-22. (declaring "[w]e have not addressed and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.").
(101.) Bin Laden, 126 F. Supp. 2d at 271 (citing United States v. Clay, 430 F.2d 165, 171 (5th Cir. 1970), and United States v. Butenko, 494 F.2d 593, 605 (3d Cir. 1974) in upholding warrantless foreign intelligence surveillance.) Id.
(102.) See discussion supra note 18 and accompanying text.
(103.) 629 F.2d 908 (4th Cir. 1980). The Foreign Intelligence Surveillance Court of Review in 2002 upbraided other circuit courts for following the "primary purpose" test as set forth in Truong. Sealed Case, 310 F.3d at 725.
(104.) Truong, 629 F.2d at 914 (deferring to the necessity of the executive being able to manage an effective and efficient foreign policy).
(105.) Id. at 915 (limiting foreign intelligence exception to instances where the "interests of the executive are paramount").
(106.) See generally The Foreign Intelligence and Surveillance Act (FISA) of 1978, codified at 50 U.S.C. [section] 1801 et seq. (2000 & Supp. 2003).
(107.) See infra notes 113-17 (discussing FISA in-depth). The statute originally did not provide for physical searches, this was achieved by amendment in 1994. Pub L. No. 103-359, 108 Stat. 3444 (1994), codified as amended at 50 U.S.C. [section][section] 1821-1829 (2000) (concerning physical searches). The court in United States v. Nicholson had no problem upholding these provisions, holding that the physical search was not subject to more stringent requirements than the electronic surveillance. United States v. Nicholson, 955 F. Supp. 588 (4th Cir. 1997) (holding that "Defendant's argument that physical searches are per se more intrusive than electronic surveillance is unavailing in light of Katz"). 955 F. Supp at 591.
(108.) P.L. 107-56, Title II, [section] 208, 115 Stat. 283 (2001) (codified as amended at 50 U.S.C. [section] 1803 (2000 & Supp. 2001)) (describing the powers, procedures and duties of the Foreign Intelligence Surveillance Court and the FISC Court of Review).
(109.) See ACLU v. Barr, 952 F.2d 457, 460-61 (D.C. Cir. 1991) (discussing purposes of FISA).
(110.) 126 F. Supp. 2d at 272, at n. 8.
(111.) Omnibus Crime Control and Safe Streets Act (OCCSSA) of 1968, codified as amended at 42 U.S.C. [section] 3711 et seq. (2000).
(112.) Id. Parties seeking to conduct surveillance of U.S. persons under this standard must satisfy the traditional requirements of probable cause. Id.
(113.) See The Foreign Intelligence Surveillance Act (FISA) of 1978, Pub. L. 95-511, 92 Stat. 1783, codified as amended at 50 U.S.C. [section][section] 1801 et seq. (2000 & Supp. 2003).
(114.) P.L. 107-56, Title X, [section] 1003, 115 Stat. 392 (2001), codified as amended at 50 U.S.C. [section][section] 1801(f)(1-4) (Supp. 2001); P.L. 107-56, Title II, [section] 208, 115 Stat. 283 (2001), codified as amended at 50 U.S.C. [section] 1803(a) (2000 & Supp. 2001) ("Designation of Judges"). See also 50 U.S.C. [section] 1821(5) (2000 & Supp. 2001) (defining the term "physical search"); 50 U.S.C. [section] 1822(c) (2003) ("Authorization of physical searches for foreign intelligence purposes").
(115.) See Bin Laden for a discussion of this conflict. 126 F. Supp. 2d at 272-73
(116.) P.L. 107-56, Title X, [section] 1003, 115 Stat. 392 (2001), codified as amended at 50 U.S.C. [section][section] 1801 (b)(1-2)(Supp. 2001). The surveillance must be intended to acquire foreign intelligence information. Id.
(117.) 50 U.S.C. [section] 1801(a) (2000 & Supp. 2001). The full definition reads: (a) "Foreign power" means--(1) a foreign government or any component thereof whether or not recognized by the United States; (2) a faction of a foreign nation or nations, not substantially composed of United States persons The term United States person or U.S. person is used in the context of data collection and intelligence by the United States, particularly with respect to the provisions of the Foreign Intelligence Surveillance Act. If information from, about, or to a U.S. ; (3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments; (4) a group engaged in international terrorism or activities in preparation therefor there·for
For that: ordering goods and enclosing payment therefor.
Adv. 1. therefor ; (5) a foreign-based political organization, not substantially composed of United States persons; or (6) an entity that is directed and controlled by a foreign government or governments." Id.
(118.) P.L. 107-56, Title II, [section] 218, 115 Stat. 291 (2001), codified as amended at 50 U.S.C. [section][section] 1803 (2000 & Supp. 2001) (describing the Court's makeup) and 1804(a) (2000 & Supp. 2001) ("Applications for Court Orders," describing the procedures followed by the attorney general when applying for a warrant). The court consists of seven district court justices appointed by the Chief Justice of the U.S. Supreme Court. 50 U.S.C. [section] 1803(a) (2000 & Supp. 2001). The Court will apply a minimal level of scrutiny to the surveillance authorization requests. See United States v. Duggan, 743 F.2d 59, 77 (2d Cir. 1984), discussed infra at note 122.
(119.) P.L. 107-56, Title V, [section] 504(a), 115 Stat. 364 (2001), codified as amended at 50 U.S.C. [section] 1806(b) (2000 & Supp. 2002) ("Use of information").
(120.) Sealed Case, 310 F.3d at 719.
(121.) Exec. Order 12949 (Feb. 9, 1995).
(122.) Nicholson, 955 F. Supp. at 590. (citing Keith, 407 U.S. at 327). The court in Nicholson noted the Second Circuit's decision in Duggan (also applying the reasonableness test). 955 F. Supp. at 591.
(123.) See Duggan, 743 F.2d 59, 72 (2d Cir. 1984) (upholding presidential power to engage in warrantless surveillance to collect foreign intelligence information). The Second Circuit held that compelling concerns of national security justified disparate treatment of U.S. citizens and non-resident aliens under FISA. 743 F.2d at 72. The court further held that surveillance taken for national security purposes may be used against defendants (in this case members of the Irish Republican Army
This is a list of members of the Irish Republican Army. ) in a criminal action as well. Id. The case also highlights the minimal scrutiny afforded to alienage ALIENAGE. The condition or state of alien. distinctions in cases of this type. 743 F.2d at 76. Accord United States v. Megahey, 553 F.Supp. 1180, 1186 (E.D.N.Y. 1982) (companion case, reiterating that "[t]here is no universal requirement of a warrant before a search can be conducted under the fourth amendment.").
(124.) See Electronic Frontier Foundation See EFF.
(body) Electronic Frontier Foundation - (EFF) A group established to address social and legal issues arising from the impact on society of the increasingly pervasive use of computers as a means of communication and information distribution. Analysis of the Provisions of the USA PATRIOT Act, at 4 (on file with author) [hereinafter EFF (Electronic Frontier Foundation, San Francisco, CA, www.eff.org) A non-profit civil liberties organization founded in 1990 by Mitchell Kapor and John Perry Barlow. It works in the public interest to protect privacy and freedom of expression in the arenas of computers and the Internet. Analysis]. A trap and trace order authorizes the collection of telephone numbers dialed to and from a particular machine, but not the actual communications themselves. Id. See also 18 U.S.C. [section][section] 3121-3127 (2000 & Supp. 2003) (setting forth the statutory exceptions to the prohibition on pen registers and trap-and-trace orders).
(125.) See id.
(126.) See FISA, 50 U.S.C. [section] 180 et seq. (2000 & Supp. 2003).
(127.) See ACLU Analysis, discussed supra at note 29. The ACLU is troubled by the provisions in USAPA which make it easier for law enforcement to access the vast caches of student data maintained by educational institutions as part of the National Education Statistics Act of 1994. Pub. L. No. 103-382, Title IV, 108 Stat. 4029 (1994), codified at 20 U.S.C. [section][section] 9001-9009, since repealed entirely by P.L. 107-279, Title IV, [section] 403(1), 116 Stat. 1985 (2002), codified as amended at 20 U.S.C. [section] 9561 et seq. (Supp. 2002). Id. See also infra note 165 (discussing [section] 507 of USAPA).
(128.) P.L. 107-56, Title II, [section] 218 (2001), codified as amended at 50 U.S.C. [section] 1804(a)(7)(B) (2000 & Supp. 2001). One may note that the FISC had rejected only one warrant application since its inception, even under the older standard. Sealed Case, supra note 119, at 717-18. See also 50 U.S.C. [section] 1804(b) (2000 & Supp. 2001) (describing the Court of Review). While this fact may make the distinction between primary-purpose and significant purpose seem superficial, it is one the executive branch, the legislature and the judiciary all saw fit to erase after the terrorist attacks of September 11, 2001. USAPA, P.L. 107-56, Title II, [section] 218 (2001); Sealed Case, 310 F.3d at 728.
(129.) P.L. 107-56, Title II, [section] 218 (2001). See also Sealed Case, 310 F.3d at 728 (discussing the evolution of the primary-purpose test as being a function of judicial misreading MISREADING, contracts. When a deed is read falsely to an illiterate or blind man, who is a party to it, such false reading amounts to a fraud, because the contract never had the assent of both parties. 5 Co. 19; 6 East, R. 309; Dane's Ab. c. 86, a, 3, Sec. 7; 2 John. R. 404; 12 John. R. of FISA and misplaced mis·place
tr.v. mis·placed, mis·plac·ing, mis·plac·es
a. To put into a wrong place: misplace punctuation in a sentence.
b. reliance on the Truong case).
(130.) P.L. 107-56, Title II, [section] 206 (2001), codified as amended at 50 U.S.C. [section] 1805 (c)(2)(B) (2000 & Supp. 2002). USAPA made FISA's roving wiretap provisions akin to those found in 18 U.S.C. [section] 2510 et seq. (2000 & Supp. 2002) (governing domestic surveillance). See also Commentary of the National Institute for Trial Advocacy, Title 50 NITA NITA National Institute for Trial Advocacy
NITA National Information Technology Agenda (Malaysia)
NITA Naval Intelligence Technical Assessment 36 (2003).
(131.) See ACLU Analysis, supra note 29 (alleging that even membership in a mainstream group like PETA Quadrillion (10 to the 15th power). See space/time. (People for the Ethical Treatment of Animals People for the Ethical Treatment of Animals (PETA) is an international nonprofit organization that supports Animal Rights and has spawned a tremendous amount of conflict and controversy from its inception. , a large group that includes a faction prone to acts of petty vandalism) might be grounds for deportation of non-citizens under USAPA).
(132.) Konop v. Hawaiian Airlines Hawaiian Airlines is the 11th largest commercial airline in the United States. It is the largest airline based in the State of Hawai'i and is commonly referred to by the acronym "HAL". , Inc., 302 F.3d 868 (9th Cir. 2002). A disgruntled dis·grun·tle
tr.v. dis·grun·tled, dis·grun·tling, dis·grun·tles
To make discontented.
[dis- + gruntle, to grumble (from Middle English gruntelen; see airline pilot maintained a secure website where employees who had a login Signing in and gaining access to a network server, Web server or other computer system. The process (the noun) is a "login" or "logon," while the act of doing it (the verb) is to "log in" or to "log on. and password could view bulletins critical of their employer. Id. A vice-president using another employee's login information viewed the website and the pilot was suspended. Id.
(133.) See EFF Analysis, supra note 124, at 6-7. (discussing the ways in which getting a search warrant is easier than getting an intercept order. To get an intercept order under Title III it is necessary to make a showing that probable cause is present that the target of the intercept order has committed one of a list of enumerated This term is often used in law as equivalent to mentioned specifically, designated, or expressly named or granted; as in speaking of enumerated governmental powers, items of property, or articles in a tariff schedule. serious crimes. Intercept orders require the law enforcement official to report back to the court and are only good for 30 days. Search warrants require only probable cause). Id.
(134.) Id. See also H.R. REP. 107-236(I) (2001) (showing Congress' awareness of the narrowness of the courts definition of intercept, and desire to make the definition apply to voice mail messages). Id. The court in Konop notes that stored communications are less-protected than communications in transit and under USAPA voicemail and websites now enjoy far less protection from surveillance than in the past. Konop, 302 F.3d 868.
(135.) 302 F.3d 868, 876. The court applied a narrow definition of the term "intercept"--as "acquisition contemporaneous con·tem·po·ra·ne·ous
Originating, existing, or happening during the same period of time: the contemporaneous reigns of two monarchs. See Synonyms at contemporary. with transmission" in accord with the intent of the Wiretap Act. Id. See 18 U.S.C. [section] 2511(1)(a) (2000 & Supp. 2002).
(136.) In re: Sealed Case 02-001, 310 F.3d 717, 722-25 (D.C. Cir. 2002). (granting the application for surveillance as originally sought, rejecting restrictions imposed by FISC Court). Id.
(137.) Id. One notes however that the three judges on the Court of Review are appointed by the Chief Justice of the U.S. Supreme Court (presently William Rehnquist). 50 U.S.C. [section] 1803(b) (2000 & Supp. 2001). Further, in ex parte proceedings (the Federal Government is the only party) the Court of Review is free to raise issues not before the original FISC court. 310 F.3d 717 at n. 6.
(138.) 310 F.3d 717. The panel consisted of Senior Circuit Judge Guy (who wrote the court's opinion), and Senior Circuit Judges Silberman and Leavy. Id. The court ordered that the law enforcement officials and intelligence officials not share the proceeds of the surveillance, and that the Justice Department be subjected to chaperoning procedures. Id. at 720.
(139.) Id. at 724-25. Not only did the court do away with the distinction, but it professed pro·fess
v. pro·fessed, pro·fess·ing, pro·fess·es
1. To affirm openly; declare or claim: "a physics major bewilderment be·wil·der·ment
1. The condition of being confused or disoriented.
2. A situation of perplexity or confusion; a tangle: a bewilderment of lies and half-truths.
Noun 1. as to how it had ever come to be read into FISA. Id. (discussing the inextricability of criminal and intelligence investigations from one another).
(140.) Sealed Case, 310 F.3d at 724 (citing H.R. REP. NO. 95-1283, at 49 (1978)). The court found similar intent in the Senate Report on FISA. Id. (citing S.REP. NO. 95-701, at 10-11) (1978)). The court also discussed the evolution of the primary purpose test, noting that no decision had tied the test to any statutory language. Id.
(141.) Id. at 735 ("even though ... the original FISA did not contemplate the "false dichotomy, the PATRIOT Act actually did, which makes it no longer false.") Id.
(142.) Sealed Case, 310 F.3d at 736.
(143.) Id. at 746.
(144.) Sealed Case, 310 F.3d at 746 (noting the high degree to which the criminal process is integrated into the process of fighting terrorism).
(145.) P.L. 107-56, Title VIII, [section] 802(a), 115 Stat. 376 (2001), codified as amended at 18 U.S.C. [section] 2331(5)(A-B A-B Air-Britain (UK-based aviation historical society)
A-B Research Centre Applied Biocatalysis (Graz, Austria) )(i-iii) (2000 & Supp. 2001) (stating in relevant part: "The term 'domestic terrorism' means activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; appear to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination Assassination
See also Murder.
Fanatical Moslem sect that smoked hashish and murdered Crusaders (11th—12th centuries). [Islamic Hist.: Brewer Note-Book, 52]
conspirator and assassin of Julius Caesar. [Br. , or kidnapping."). The ACLU has noted that this new definition would permit the deportation of noncitizen WTO See World Trade Organization. protestors and other political activists associated with organizations promoting civil disobedience civil disobedience, refusal to obey a law or follow a policy believed to be unjust. Practitioners of civil disobediance basing their actions on moral right and usually employ the nonviolent technique of passive resistance in order to bring wider attention to the . ACLU Analysis, supra notes 123-24 (discussing the possible breadth of interpretation logically attributable to the new definitions set forth in USAPA).
(146.) See EFF Analysis, supra note 124, at 7-8 (summarizing the other impacted areas of law enforcement).
(147.) See Konop, 302 F.3d at 868 (discussing the implications of the new definition of "stored communications).
(148.) P.L. 107-56, Title II, [section] 219, 115 Stat. 289 (2001), codified at FED.R. CRIM. P. 41(a). See also 18 U.S.C. [section] 2703 (2000 & Supp. 2002). These roving search warrants require only that an activity relating to terrorism has occurred in the jurisdiction issuing the warrant. Id.
(149.) P.L. 107-56, Title II, [section][section] 209(2), 210, 212(b)(1), 220(a)(1), 220(b), 115 Stat. 283, 285, 291, 292 (2001), codified as amended at 18 U.S.C. [section] 2703 (2000 & Supp. 2002) ("Required disclosure of customer communications or records").
(150.) P.L. 107-56, Title II, [section] 213 (2001) ("Authority for delaying notice off the execution of a warrant"). The court must find reasonable cause that the immediate notice of the warrant's execution will have an adverse result. Id. The language of the section further provides that the court may amend the warrant to extend the period for the giving of notice "for good cause shown." Id.
(151.) 18 U.S.C. [section] 3121 (2000 & Supp. 2001), as amended by P.L. 107-56, Title II, [section] 216(a), 115 Stat. 288 (2001) ("Modification of authorities relating to use of pen registers and trap and trace devices A trap and trace device is an electronic device used to record and trace all communication signals from a telecommunication system. An analogous feature available (usually at an additional charge) for use by the general public would be Caller ID. "). This provision of USAPA does not sunset. P.L. 107-56, Title II, [section] 216 (2001).
(152.) See 18 U.S.C. [section] 3121 (2000 & Supp. 2001).
(153.) P.L. 107-56, Title II, [section] 210 (2001).
(154.) Id. (illustrating the amendments to the Electronic Communications Privacy Act).
(155.) See EFF Analysis, supra note 123, at 10.
(156.) See ACLU Statement, supra note 17 (discussing Operation CHAOS For the science fiction novel, see Operation Chaos (novel). For the British operation, see Operation Chaos (Palestine)
Operation CHAOS was the code name for a domestic espionage project conducted by the CIA. , which involved extensive information sharing between the FBI, CIA, and NSA concerning activities by black nationalists, Vietnam war Vietnam War, conflict in Southeast Asia, primarily fought in South Vietnam between government forces aided by the United States and guerrilla forces aided by North Vietnam. protesters, and student activists).
(157.) P.L. 107-56, Title II, [section] 203(a), 115 Stat. 272 [section] 203(a) (2001), codified at FED.R.CRIM.P. 6(a). The Act provides in part that "disclosure may be made (to intelligence agencies) when the matters involve foreign intelligence or counterintelligence coun·ter·in·tel·li·gence
The branch of an intelligence service charged with keeping sensitive information from an enemy, deceiving that enemy, preventing subversion and sabotage, and collecting political and military information. or foreign intelligence information, to any Federal law enforcement, intelligence, protective, immigration immigration, entrance of a person (an alien) into a new country for the purpose of establishing permanent residence. Motives for immigration, like those for migration generally, are often economic, although religious or political factors may be very important. , national defense, or national security official in order to assist the official receiving that information in the performance of his official duties." (parenthetical added). Id.
(158.) Id. The ACLU takes issue with the sharing of grand jury information with the CIA, pointing out that under the new definition of "foreign intelligence information" would permit information about Americans to be shared with the CIA even if the information was not necessary to national security and even if the information was not limited to the person being investigated. ACLU Analysis, supra note 28.
(159.) P.L. 107-56, Title II, [section][section] 203(b)(2), 209(1), and 217(1), 115 Stat. 280, 283, 291 (2001), codified as amended at 18 U.S.C. [section][section] 2510 (2000 & Supp. 2002). See also P.L. 107-56, Title II, [section] 203(b)(1), 115 Stat. 280 (2001), codified as amended at 18 U.S.C. [section] 2517 (2000 & Supp. 2002) ("Authorization for disclosure and use of intercepted wire, oral, or electronic communications").
(160.) 50 U.S.C. [section] 403(c) (2000). The ACLU admits that the language of this section prohibits the CIA Director from conducting electronic surveillance, but does not similarly prohibit physical searches, and argues that the Act has the effect of giving the CIA a significantly enhanced role in the domestic intelligence gathering process, contrary to the provisions of its charter. See ACLU Commentary, supra note 124 (arguing against the dismantling of inter-agency intelligence-sharing barriers).
(161.) See generally EFF Analysis, supra note 124.
(162.) P.L. 107-56, Title II, [section][section] 203(b)(2), 209(1), and 217(1), 115 Stat. 280, 283, 291 (2001). This part of USAPA covers activities of "computer trespassers" and also requires that the interception not acquire transmissions other than those to or from the trespasser TRESPASSER. One who commits a trespass.
2. A man is a trespasser by his own direct action he acts without any excuse; or he may be a trespasser in the execution of a legal process in an illegal manner; 1 Chit. Pl. 183: 2 John. Cas. . Id.
(163.) P.L. 107-56, Title V, [section] 503, 115 Stat. 364 (2001), codified as amended at 42 U.S.C. [section] 14135a(d)(2) (2000 & Supp. 2001). Although the section is entitled "DNA identification of terrorists and other violent offenders" it is worth noting that the term "violent offenders" includes a considerable class of persons who are not accused of terroristic offenses. Id.
(164.) P.L. 107-56, Title II, [section][section] 201, 202, 115 Stat. 278 (2001), codified as amended at 18 U.S.C. [section] 2516(1)(c) (2000 & Supp. 2003).
(165.) P.L. 107-56, Title V, [section] 507, 115 Stat. 367 (2001), codified as amended at 20 U.S.C. [section] 1232g(j)(A) (2000 & Supp. 2002).
(166.) See supra note 126 and accompanying text (discussing repeal of National Education Statistics Act of 1994). This certification of the Attorney General or Assistant Attorney General does not need to specify what those facts are, and the court does not have the discretion to deny the application. P.L. 107-56, Title V, [section] 508 (2001).
(167.) See The USA PATRIOT Act and Patron Privacy on Library Internet Terminals, at http://www.llrx.com/features/usapatriotact.htm (discussing librarians' fears in the aftermath of September 11, 2001).
(168.) See id. (discussing the expansion of trap and trace orders by analogizing URL URL
in full Uniform Resource Locator
Address of a resource on the Internet. The resource can be any type of file stored on a server, such as a Web page, a text file, a graphics file, or an application program. information with telephone number information; thus allowing law enforcement officials who have gained a warrant under the reduced FISA standards to view many internet searches conducted by terminal users, as this information appears in the URL window as the search is executed.) Id.
(169.) Muslim Comm. Assoc., discussed supra note 14 and accompanying text.
(170.) Muslim Comm. Assoc. at [paragraph] 2 of Plaintiff's Complaint for Declaratory DECLARATORY. Something which explains, or ascertains what before was uncertain or doubtful; as a declaratory statute, which is one passed to put an end to a doubt as to what the law is, and which declares what it is, and what it has been. 1 Bl. Com. 86. and Injunctive Relief injunctive relief n. a court-ordered act or prohibition against an act or condition which has been requested, and sometimes granted, in a petition to the court for an injunction. . The Complaint notes that under Section 215, parties served with such warrants are prohibited from ever disclosing to the target that the FBI has sought the requested information, records or items. Id.
(171.) See generally P.L. 107-56, Title IV (2001) (attempting to address issues such as the unprotected U.S./Canadian border, the longest unprotected border in the world).
(172.) P. L. 107-56, Title IV, [section] 405 (2001).
(173.) Id. at [section] 417 ("Machine readable Data in a form that can be read by the computer, which includes disks, tapes and punch cards. Printed fonts that can be scanned and recognized by the computer are also machine readable. passports).
(174.) See press release, Attorney General Ashcroft Directs Law Enforcement Officials to Implement New Anti-Terrorism Act, at http://www.usdoj.gov/opa/pr/2001/01_ag_558.htm (on file with author). The press release announces "Investigators will now aggressively pursue terrorists on the internet," and quotes the Attorney General, who claims that "law enforcement is now empowered with new tools and resources necessary to disrupt, weaken, and eliminate the infrastructure of terrorist organizations ..." Id.
(175.) P.L. 107-56, Title VIII, [section] 814 (2001) ("Deterrence and Prevention of Cyberterrorism"). Cyberterrorist strikes take forms similar to that of the attack occurring on October 23, 2002 which affected 9 of the 13 root-level internet servers. Alberti, Bob, Perspective: Waiting for the Net Meltdown meltdown
Occurrence in which a huge amount of thermal energy and radiation is released as a result of an uncontrolled chain reaction in a nuclear power reactor. The chain reaction that occurs in the reactor's core must be carefully regulated by control rods, which absorb , at http://news.com.com/2010-1071-9632905.html (on file with author). An attack successfully targeting all 13 would have the effect of severely affecting global internet use. Id. Although this attack was not discernable to almost any user, some news sources estimate that overall internet responsiveness and access was reduced by six percent. Id.
(176.) P.L. 107-56, Title VIII, [section] 816 (2001).