The USA PATRIOT Act and telecommunications: privacy under attack.

I. INTRODUCTION

The USA PATRIOT Act of 2001, (1) signed into law on October 26, 2001, became a formidable weapon in the United States' war against terrorism. Enacted quickly in response to the September 11th terrorist attacks, Congress strengthened the abilities of U.S. law enforcement and intelligence communities to combat terrorism on a variety of fronts. The PATRIOT Act ushered in sweeping changes to several key areas of law. Specifically, it expanded law enforcement and foreign intelligence authority in the areas of electronic intelligence gathering, including Internet surveillance. (2)

By enhancing the government's ability to conduct surveillance, however, this far-reaching legislation severely diminishes critical privacy protections to an "unprecedented degree." (3) The PATRIOT Act authorizes law enforcement to use increased surveillance techniques, "including the ability to conduct covert searches, obtain sensitive personal records, track e-mail and Internet usage, and evade the Fourth Amendment's probable cause requirement." (4)

Furthermore, federal agents can "exercise these powers with minimal judicial and Congressional oversight." (5) The Act's possible effect on providers and users of telecommunications, including wireless phones, email, and the Internet, is incredibly broad. (6) Moreover, law enforcement agents expect to increase their interception and monitoring of electronic communications. (7) In fact, the likelihood of a wiretapping, for example, is expected to rise by a factor of ten. (8) Already, many telecommunications carriers have turned over customer data to law enforcement agents. (9) Likewise, concerns about misuse of the law have started to surface. (10)

This Article summarizes and evaluates those portions of the PATRIOT Act that have the most profound impact on the privacy interests of telecommunications users and carriers, including Internet Service Providers ("ISP"s). Part I provides a brief background of the evolution of U.S. national security efforts, telecommunications and foreign intelligence law, and the role of the executive branch, leading up to the passage of the PATRIOT Act. Part II then outlines and critiques the various provisions of the PATRIOT Act, discussing the critical Fourth Amendment implications and related privacy concerns. Provisions related to searches and subpoenas are first examined, followed by aspects pertaining to wiretapping and voluntary disclosure. Part III concludes with suggestions for legislative and judicial oversight and revision.

II. BACKGROUND

National security laws and foreign intelligence gathering are certainly not new, as they date back to the birth of this nation. (11) In fact, war-time threats to national security have led to such laws as the Espionage Act of 1917, (12) which granted the government greater surveillance authority. Since the days of George Washington and Thomas Jefferson, U.S. presidents have also sought broad executive control over foreign intelligence matters and national security. President Woodrow Wilson, for example, authorized the surveillance and wiretapping of German delegations to the United States. (13)

Widespread government intelligence gathering and surveillance escalated through the 1960s, as electronic surveillance technology, such as wiretapping, became increasingly important. For many years, wiretaps were authorized with minimal judicial or Congressional oversight. (14) Finally, a landmark Supreme Court ruling limiting surveillance (15) prompted Congress to take a more active role, focusing on privacy issues.

In 1968, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act, (16) commonly known as the "federal wiretapping statute," to create a uniform procedure for domestic electronic surveillance in criminal cases. Title III authorizes law enforcement agents to obtain a warrant (17) to engage in electronic surveillance activities but under limited conditions (18) and only if a judge finds probable cause that the target "is committing, has committed, or is about to commit a particular offense." (19) Congress sought to effectively balance privacy interests against law enforcement needs, and the probable cause requirement was particularly important in meeting Fourth Amendment (search and seizure) scrutiny.

Yet executive authority to engage in foreign intelligence surveillance was not meant to be limited, (20) and abuse continued. (21) To clarify the power of the executive branch in matters of foreign intelligence gathering, Congress enacted the Foreign Intelligence Surveillance Act of 1978 ("FISA"). (22) FISA essentially allows electronic surveillance (23) and physical searches (24) of foreigners and U.S. citizens when there is "probable cause to believe that ... the target ... is a foreign power or an agent of a foreign power." (25) Still, standards for obtaining a warrant are much less rigorous than under Title III (26) since the information sought is not for criminal prosecution, but only for intelligence gathering, which does not require a showing of probable cause of a crime. Furthermore, applications for FISA warrants are submitted in secret. (27) Various courts have nonetheless found FISA to be a constitutional balancing of Fourth Amendment rights against national security needs for foreign intelligence gathering. (28)

By the mid-1980s, advances in telecommunications technologies presented new concerns not addressed by Title III. Thus, in 1986, Congress enacted the Electronic Communications Privacy Act ("ECPA") (29) as an amendment to Title III, to update the law's language and to cover such technologies as wireless voice communications, stored electronic communications such as electronic mail, and devices that could record incoming and outgoing telephone numbers dialed. (30) Surveillance authorization, however, varies. For example, e-mail surveillance requires a search warrant while the use of telephone devices that do not capture content require only a "judicial order with a certification that 'the information ... obtained is relevant to an ongoing criminal investigation.'" (31)

The federal government, prompted partly by acts of terrorism like the 1993 bombing of the World Trade Center and the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, nevertheless demanded greater surveillance authority during the 1990s. (32) In 1994, law enforcement agencies were given considerable latitude with the enactment of the Communications Assistance for Law Enforcement Act ("CALEA"). The CALEA requires a telecommunications provider to make "its equipment, facilities, or services ... capable of ... enabling the government ... [without a warrant] (33) to intercept ... all wire and electronic communications carried by the carrier." (34) Later, while U.S. embassies and a Navy destroyer were bombed, (35) the government began developing high-tech FBI surveillance operations such as Carnivore, which secretly captures and tracks e-mail and web communications, (36) and Echelon, a worldwide satellite surveillance system that listens for "key words and phrases" like "bomb" and "kill the president." (37) Law enforcement officials also asked the FCC for easy access to cell phone location information. (38) Such government efforts aimed at expanding authority have been controversial, however, and subject to limitation. (39)

Thus, when terrorists hijacked planes and struck the World Trade Center towers and the Pentagon on September 11, 2001, the White House and Congress reacted quickly in securing greater executive authority and increased surveillance authority for law enforcement. Widespread fear and public support for combating terrorism and bolstering national security helped spur the effort. (40) Within just six weeks of the attacks, the Bush administration successfully ushered in a new law, amending FISA, the ECPA, and Title III, and including a number of provisions that federal law enforcement agencies had sought unsuccessfully for years. (41) On October 26, 2001, the USA PATRIOT Act (42) was signed into law.

Unfortunately, in the rush to enact the PATRIOT Act, broad new powers were created with insufficient scrutiny given to the wording of most provisions. Congress spent very little time studying, debating, or hearing expert testimony on the proposed sections. (43) Normal procedural processes, such as inter-agency review and committee hearings were suspended. (44) As a result, many provisions were not checked for their constitutionality, lack of judicial oversight, and potential for abuse. Furthermore, Congress did not consider the chance that law enforcement might use electronic surveillance to monitor activity unrelated to terrorism..

The following section outlines and examines those provisions pertaining to telecommunications users and providers. Secret electronic surveillance of communications, particularly over the Internet, poses serious concerns as millions of unsuspecting Americans use and rely on information services daily. The PATRIOT Act effectively tears down the legal firewalls erected a quarter of a century ago, tipping the balance in favor of government control and away from personal privacy.

III. THE USA PATRIOT ACT