The Constitutionality of Four Provisions of the Patriot Act:
A Legal Analysis
By Brian P. LeBlanc
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In the early morning hours of July 24th 2004 a terrorist cell in Boston is activated
via an encrypted email message. Their sinister plot to detonate a “Dirty Bomb” at the
Democrat National Convention has begun. Months earlier the terrorists purchased a large
box-truck which they used to masquerade as movers as they inconspicuously blended into
the city and set about collecting the needed supplies for their deadly plan. Knowing the
legal restraints placed on US law enforcement the terrorists have only communicated via
cloned cell phones and email in order to avoid detection.
After months of preparations the terrorists now excitedly begin their lethal
mission by loading the box truck with their deadly cargo: 2,000 pounds of explosives
stolen from “Big Dig” construction sites, laced with radioactive material stolen from
unprotected medical supplies and equipment. As they gleefully load the truck the
terrorist begin to revel in the thought of the destruction and mayhem the explosives will
surely cause. But they find the most delight in the thought of the mass hysteria and chaos
that is sure to follow the detonation of a “Dirty Bomb” in a metropolitan area such as
Boston.
With the truck loaded and the bomb disabled until the very last minute, the
terrorists embark on their homicidal mission. As the truck winds its way through the
Boston traffic, it comes to a stop at a red light about a mile away from the Fleet Center the intended target full of unsuspecting pawns in the terrorist’s evil game. Just as their
light turns green and the truck begins to move, an empty bus unexpectedly stops in front
of the truck blocking it in. Simultaneously, a loud bang and flash of light is produced by
a flash-bang distraction device thrown by an FBI SWAT team as they swiftly move in
and take the terrorists into custody at gun point.
This fictionalized story highlights the very real threat of a “Dirty Bomb” being
used by a terrorist group, but more importantly this story illustrates the tactics and
techniques employed by terrorist to evade detection. The terrorists use of secure
communications and very tight operational security, render the traditional methods of law
enforcement investigation such undercover operatives or informants useless. In this case,
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however, using investigative techniques authorized under the Patriot Act, law
enforcement agents successfully detected and thwarted the terrorists’ deadly plan.
In this fictionalized case the FBI quickly began their investigation after receiving
information obtained form a grand jury proceeding about a terrorist cell operating in
Boston. Then after receiving judicially authorized wiretaps and pen registers the FBI
began to monitor the cell’s cell phones and email. Upon conducting a judicially
authorized “sneak & peek” search of the cell’s apartment the FBI discovers their sinister
plot and the deadly materials. Armed with the Patriot Act the FBI quickly developed the
necessary probable cause for the arrest warrants and saved countless lives, without
trampling on the Constitution, as critics would have you believe. In the quest to protect
Americans from the threats are numerous and the stakes are high, but the Patriot Act
seeks to reduce the threat by giving law enforcement and intelligence agencies the tools
they need to protect the homeland.
In this paper I will argue that the majority of the legal provisions embodied in the
USA Patriot Act are Constitutional. I will support this thesis by discussing four major
points of contention about the Patriot Act: the release of information obtained during
Grand Jury proceedings, Roving Wiretaps, “Sneak & Peek” Searches and the Pen
Register Law as it applies to Internet Surveillance. After first presenting a brief history
of the Patriot Act I will discuss each provision and the critics’ arguments them. I will
refute their arguments by presenting evidence in the form of legal analysis to show these
provisions are in fact Constitutional. I will then present several recommendations and
conclusions about the Patriot Act.
History
As the shock and horror of the 9-11 terror attacks ebbed there came the repeated
question: How could the FBI and other intelligence agencies have failed to detect such a
labor intense plan, which had obviously been planned for months by terrorist living
within the United States. The results of the ensuing investigation into the failures,
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repeated what many officials have been saying for years – The investigative and
information-sharing abilities of law enforcement and intelligence agencies are far too
restrictive and severely limit their ability to protect the United States. Over the past
several years, congressional oversight committees have severely hindered law
enforcement and intelligence agencies ability to collect and share information. As a
result many of the laws such as the Foreign Intelligence Surveillance Act and the
Electronic Communications Privacy Act, have failed to keep pace with the technology
and tactics used by terrorist and criminals to thwart detection.
In an attempt to change this Congress developed and in October 2001 the
President enacted, the “Uniting and Strengthening America by Proving Appropriate
Tools to Intercept and Obstruct Terrorism,” here in after the Patriot Act. The Patriot Act
is a comprehensive legal package designed to update existing laws and codify other areas,
such as Internet surveillance, that were not previously governed. Within its 300 plus
pages the Patriot Act includes many legal provisions dealing with a range of topics from
the release of private and financial institution records, to the investigation of religious
organizations, which was previously prohibited, and the designation and trial of “enemy
combatants.”
Since its enactment the Patriot Act has become hotly debated; the ACLU believes
that the act threatens many basic civil liberties, while the Justice Department considers
the act necessary and Constitutional. Because of the wide scope of the Patriot Act, this
paper will focus on four of the most hotly debated provisions: the release of Grand Jury
information, Roving Wiretaps, “Sneak & Peek” searches and the changes to the Pen
Register Law as it applies to Internet Surveillance.
I.
Release of Grand Jury Information
Section 203 of the Patriot Act allows information derived from a grand jury
proceeding to be disclosed to law enforcement and national security officials if that
information involves foreign intelligence or national security matters. (2001)
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Rule 6 of Federal Criminal Procedure imposes strict rules of secrecy on grand
jury proceedings and allows for few exceptions. Federal Criminal Procedure allows for
the sharing of grand jury information under the following: 1. Government attorneys may
share grand jury information with other government attorneys or governmental personnel
to assist in the performance of the attorney’s duty to enforce federal criminal law. 2.
Grand jury information can be shared at the direction of the court, either related to a
judicial proceeding or at the request of a defendant whom could show possible grounds
for a motion to dismiss the indictment. And 3. A government attorney may disclose
grand jury information to another federal grand jury. These exceptions also require that
in all cases there must be a particularized need and a judicial proceeding prior to
disclosure. In their rationale for limited disclosure the courts have found that the secrecy
of the grand jury serves two functions: encouraging witnesses to come forward and
testify fully, and preventing leaks to targets who might flee or obstruct the grand jury’s
investigation. (Beale & Felman, 2002)
Section 203 of the Patriot Act amends the disclosure exceptions outlined under
Rule 6 to permit the disclosure of information involving foreign intelligence or
counterintelligence to any Federal law enforcement, intelligence, protective, immigration,
national defense, or national security official, in order to assist that official in the
performance of their official duties. (Pat. Act, 2001) The Act further requires that
“within a reasonable time after” a disclosure under the new provision, “an attorney for
the government shall file under seal a notice with the court stating the fact that such
information was disclosed and the departments, agencies, or entities to which the
disclosure was made.” (Pat. Act, 2001)
Opponents of this provision believe that the inherent secrecy and power of the
grand jury as provided for by the US Constitution are sacred and that these changes
degrade the grand jury institution. In particular opponents argue that these changes will
discourage witnesses from coming forward to testify and that the release of information
may cause targets to flee or obstruct the grand jury’s investigation. However, a review of
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legal analysis conducted by Sara Beale and James Felman (2002) of Duke University
Law School highlights a number of exceptions to the secrecy rule. Revealing that grand
jury information is commonly released in a number of instances without any harm, and
that in many cases there is a clear need for disclosure.
The first exception discussed by Beale & Felman (2002) allowed for the
disclosure of information to state officials. In 1985 Congress authorized the courts to
order disclosure of grand jury materials to a state official if the matter disclosed may have
shown a violation of state criminal laws. Congress authorized this exception in order to
address the problem that when federal grand juries developed evidence showing a
violation of state law, the information could not be communicated to state officials for
further investigation because of the requirement of a showing of particularized need and a
judicial proceeding. (2002)
Beale and Felman (2002) also discuss the exception enacted by Congress in 1989,
in reaction to several banking failures in the 1980’s, which expanded the disclosure
authority of the courts. This legislation authorized the disclosure of grand jury
information arising out of an investigation of banking law violations to a financial
institution regulatory agency upon showing that such agency had a “substantial need” for
the information.
Yet another exception cited by Beale and Felman (2002) is the International
Antitrust Enforcement Assistance Act of 1994, which further expanded the courts’
authority to grant disclosure of grand jury information. This legislation authorized the
disclosure of grand jury information relating to violations of foreign antitrust law to a
“foreign antitrust authority” upon showing of particularized need.
With the number of exceptions to the secrecy rule, cited by Beale and Felman, it
seems incomprehensible that government prosecutors should be allowed to share
information about violations of state law, banking laws and even foreign antitrust laws,
but they can not share information about possible terrorist activities.
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As for the concerns that the Patriot Act provisions will discourage potential
witnesses from coming forward, Beale and Felman (2002) argue that because there are
already a number of exceptions to the grand jury secrecy, it seems doubtful that the
additional exceptions will make a material difference in the attitudes and conduct of lay
witnesses.
Beale and Felman (2002) also find it doubtful that the Patriot Act will have a
significant effect on the risk of suspects fleeing or trying to influence the grand jury.
Arguing that these harms can only occur when the targets of the investigation learn of the
information disclosed or they learn that they are in fact the targets of a grand jury
investigation. And they find no reason to believe that any investigative agencies would
share the grand jury information with the targets.
In some instances there is a clear need for disclosure. For example if a federal
prosecutor examining a witness in a grand jury learns of an imminent threat to national
security, the need for disclosure of that information would clearly outweigh the need for
secrecy. Beale and Felman agree, arguing that “under at least some circumstances,
disclosures of the kind authorized by the Patriot Act would be desirable.” (2002) As an
example Beale and Felman put forth the scenario in which a grand jury proceeding
reveals a plot to assassinate the Chief Executive of Pakistan, General Pervez Musharraf.
Although this would not constitute a federal crime (assuming that the plot involved only
Pakistanis acting in Pakistan), Beale and Felman argue that it would present a clear threat
to the national security of the United States. Given the danger that might be posed if
Pakistan’s nuclear weapons fell into the wrong hands. Therefore, they find a strong
justification for providing this information to national defense and national security
officials. In their analysis Beale and Felman conclude that, “the national interest will, at
least in some instances, clearly outweigh the potential harm that might flow from making
an exception to the rule of grand jury secrecy.”
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II.
Roving Wiretaps
Section 206 of the Patriot Act grants roving wiretap authority under the Foreign
Intelligence Surveillance Act. Under the new FISA standard a target specific, rather than
location specific wiretap may be granted by the FISA Court, upon showing that “a
significant purpose” of the warrant is to “obtain foreign intelligence information.” (Pat.
Act, 2001)
Opponents argue that the FISA warrant’s “significant purpose” threshold does not
meet the Fourth Amendment’s ‘probable cause’ requirement and is thus unconstitutional.
Opponents further argue that law enforcement agencies will use the broader language of
FISA to circumvent the Fourth Amendment’s probable cause requirement for warrants in
criminal cases, and the FISA standard will thus become the rule rather than the exception.
However, separate analysis of the legal research conducted by Stephen Lobaugh (2002)
and Michael Dowley (2002) illustrate that Section 206 of the Patriot Act is in fact
constitutional, and in many ways is simply a long over due update to FISA.
In the Constitutional analysis of this provision it first important to review the legal
history of the wiretap and subsequent roving wiretap statues. In 1968, Congress passed
the federal wiretap statue in Title III of the Omnibus Crime Control and Safe Streets Act.
Title III authorized law enforcement to conduct electronic surveillance on an individual
only when a court finds that, “there is probable cause for belief that an individual is
committing, has committed, or is about to commit a particular offense” and that there is
probable cause for belief that particular communications concerning that offense will be
obtained through such interception.” (Lobaugh, 2002) Because law enforcement had to
provide a particular description of the location of the facilities from which or the place
where the communication is to be intercepted they had to apply for a new warrant each
time they wanted to intercept conversations on a new phone number. However, this law
only applied to criminal investigations within the United States.
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In response to foreign threats during the Cold War in 1978 Congress enacted the
Foreign Intelligence Surveillance Act, designed to enhance U.S. intelligence capabilities
over seas, and as a protection, limit their activities domestically. The Foreign
Intelligence Surveillance Act simply applied much of the Title III electronic surveillance
provisions to foreign enemies. FISA also created the FISA Court, composed of seven
federal district court judges who possess exclusive jurisdiction to hear and grant
applications for foreign intelligence surveillance orders. FISA additionally established
the FISA Review Court composed of three federal district court judges, which has
exclusive jurisdiction to review the denial of any application made under FISA.
A FISA judge is empowered to grant a FISA warrant “for the primary purpose of
obtaining foreign intelligence information,” and under FISA, foreign intelligence
information is defined as “information that relates to … the ability of the United States to
protect against” various types of foreign threats. (Lobaugh, 2002) Thus the “primary
purpose” required under FISA is less stringent than the probable cause requirement in
criminal cases, but is legally authorized under the Constitutional mandate that the
Executive is to protect the country from foreign threats.
In response to the practice of drug dealers and criminals changing phones
numerous times to avoid detection, Congress passed the Electronic Communication
Privacy Act of 1986 (ECPA) which revised the wiretapping statue to allow for roving
wiretaps that were target-specific rather than location-specific. Under the revised law
roving wiretaps may be issued when “there is probable cause to believe that the person’s
actions could have the effect of thwarting interception from a specified facility.”
(Lobaugh, 2002) With the passage of the ECPA Congress had updated the criminal code
to allow law enforcement to keep pace with the technology and the tactics of criminals.
However, Congress did not make any improvements to the Foreign Intelligence
Surveillance Act to allow for roving wiretaps in the investigation of foreign intelligence
agents or terrorists.
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Fifteen years after the passage of the ECPA, the tragic events of 9-11 prompted
Congress to equip those conducting foreign intelligence investigations for national
security with the authority to conduct roving wiretaps under the Patriot Act. In a recent
analysis of the Patriot Act, Michael Dowley (2002) of Suffolk University Law School
argues that the Patriot Act simply modernized Title III and FISA to explicitly permit
government use of modern surveillance technology. In Dowley’s legal analysis he argues
that by authorizing FISA surveillance only when antiterrorism and foreign intelligence is
a ‘significant purpose’ the Patriot Act expands law enforcement’s surveillance
capabilities without exceeding the Fourth Amendment protections.(2002) Dowley also
argues that when considering the challenge law enforcement faces in thwarting the
substantial threats that terrorists pose to this nation, the Patriot Act’s provisions appear
congruent with the President’s constitutional authority to protect America from any
national security threats. (2002)
Stephen Lobaugh (2002) of Georgetown University Law Center similarly argues
that the roving wiretap provision of the Patriot Act is nothing more than a long overdue
update to FISA. Providing those investigating foreign intelligence matters with the same
tools that have been available to law enforcement agents investigating drug trafficking
and organized crime for years. (2002)
Lobaugh (2002) further argues that the FISA exception to the probable cause
standard is in fact constitutional. As evidence to refute the opponents’ Fourth
Amendment argument, Lombaugh cites several relevant court decisions. In citing U.S. v.
Duggan (1984) Lobaugh notes the Second Circuit Court’s opinion. Finding that,
“virtually every court that had addressed the issue of the FISA standard had concluded
that the President had the inherent power to conduct warrant-less electronic surveillance
to collect foreign intelligence information, and that such surveillance constituted an
exception to the warrant requirement under the Fourth Amendment.” (2002)
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Lobaugh (2002), also sites U.S. v. Truong Dinh Hung (1980), a case in which the
Fourth Circuit Court addressed the question of what standard the government must meet
to invoke the foreign intelligence exception to the Fourth Amendment warrant
requirement. Lobaugh cites that the court’s finding - when a search or surveillance
involves an agent of a foreign power, “the government has the greatest need for speed,
stealth, and secrecy, and the surveillance in such cases is most likely to call into play
difficult and subtle judgements about foreign and military affairs.” (2002) The court then
held that “the executive should be excused from securing a warrant only when the
surveillance is conducted primarily for foreign intelligence reasons.” (2002)
Lobaugh also cites the May 2002 opinion of the Foreign Intelligence Review
Court, which upheld the constitutionality of the FISA ‘significant purpose’ standard and
further held that FISA never actually forbade roving wiretaps. (2002) In upholding the
provision, the court noted, “effective counterintelligence … requires the wholehearted
cooperation of all the government’s personnel who can be brought to task.”(2002) The
Review Court ruled that the ‘significant purpose’ standard is sufficient to render FISA
surveillance reasonable under the Fourth Amendment, because of the nature of the
activities monitored under FISA surveillance and the needs of the executive in protecting
national security. (Lobaugh, 2002)
III.
Sneak & Peek Searches
Section 213 of the Patriot Act (2001) expands the abilities of law enforcement
agents to covertly search a suspect’s home while no one is home without seizing any
property, and give a delayed notification to the property owner(s) of the search.
Typically, the Federal Rules of Criminal Procedure require officers to leave
notification of the service of a search warrant and a receipt for all items seized in the
search. However, there are exceptions under FISA and the wiretap provisions of Title III
that allow for the delayed notification in intelligence operations and law enforcement
communication interceptions. This Patriot Act provision expands upon the number of
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possible exceptions under which authorities may secretly search a premise without
notifying the owner or occupants.
With the Orwellian vision of government agents conducting surreptitious searches
critics argue that such “sneak & peek” searches will become the rule rather than the
exception and that the searches will be kept secret pending the outcome of the
investigation, which may take years. Setting aside the fear of “Big Brother” secret
searches, an objective review of the relevant legal precedents by Stephen Lobaugh (2002)
illustrates that “sneak & peek” searches have been judicially reviewed and sanctioned for
years, and the language of the Act itself will prevent abuse.
In Stephen Lobaugh’s (2002) analysis of the Patriot Act’s “sneak & peek”
provision, he notes that the US Supreme Court has not ruled on the constitutionality of
“sneak & peek” searches, and only two US Courts of Appeals have heard such cases,
however, in both cases the courts upheld the searches.
The first case discussed by Lobaugh (2002) is United States v. Freitas (1988).
This case involved the covert entry of a home, which the DEA suspected of being used as
a methamphetamine laboratory. The warrant permitted the agents to covertly enter the
home when no one was there, look around and to leave without seizing any evidence.
The warrant contained no notice requirement, but the defendants received notice of the
search when they were arrested seven days later. At issue in this case was not the covert
entry per se, but the warrant’s lack of a notification requirement.
In upholding this case the Ninth Circuit ruled that there was no ‘fundamental’
constitutional violation by the lack of a notification requirement in the warrant.(Lobaugh,
2002) Lobaugh also argues that although in this case the court stated that covert searches
and seizures of intangibles strike at the very heart of the interests protected by the Fourth
Amendment, the court’s holdings did not reflect a rejection of such searches, but rather
illustrated the court’s desire to closely circumscribe them. Lobaugh also cites the Ninth
Circuit’s opinion that “sneak & peek” search warrants should not have a delay of notice
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any longer than seven days, and the applicant should be required to make a fresh showing
of the need for further delay.
The second case cited by Lobaugh (2002) is Unites States v. Villegas (1990) in
which the Second Circuit took up the “sneak & peek” issue. This case involved the
covert search of a house that the DEA believed was being used to manufacture cocaine.
Because in this case other surveillance methods had proven difficult or fruitless, agents
sought and were granted a warrant to conduct a covert search and take pictures, but not to
seize any evidence. The initial warrant required the agents to notify the defendants of the
search within seven days, but the agents secured a number of extensions, based on
affidavits they filed, that allowed them to delay notification for two months from the date
of entry.
In this case Lobaugh notes the finding of the Second Circuit, which like the Ninth
Circuit, held that the Fourth Amendment and the Federal Rules of Criminal Procedure
permit searches and seizures of intangibles, comparing such seizures to the seizure of
information through electronic means.(Lobaugh, 2002) As to the covert entry without
notice, Lobaugh cites the court’s finding that the success of certain types of searches or
surveillance are dependant upon the absence of premature notification, and when
nondisclosure of the authorized search is essential to its success, neither Federal Criminal
Procedure nor the Fourth Amendment prohibits covert entry. Lobaugh also notes that in
upholding the covert entry the 2nd Circuit Court had noted that in Dalia v. United States
(1979) the Supreme Court held that the Fourth Amendment does not prohibit a covert
entry performed for the purpose of installing legally sanctioned electronic bugging
equipment.
Lobaugh (2002) also notes that by applying the seven-day notification standard
set forth in Freitas the Second Circuit found that a delay of two months in seven-day
increments met constitutional muster and thus upheld the covert search and seizure. Thus
besides supporting congressional rationale for permitting “sneak & peek” searches,
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Lobaugh argues that Villegas may also prove important legal precedent for upholding
lengthy extensions of the notification requirement allowed by the Act.
Lobaugh (2002) notes that in order for a “sneak & peek” warrant to be issued
under this provision, a court must “find reasonable cause to believe that providing
immediate notification of the execution of the warrant may have an adverse result and
prohibits the seizure of tangible property except where the court finds reasonable
necessity for the seizure. And the law also requires that the warrant “provide for the
giving of such notice within a reasonable period of its execution, which period may
thereafter be extended by the court for good cause shown.” (Lobaugh, 2002)
Lobaugh thus argues that neither the language of the Act nor the legal precedent
set forth in Villegas will allow for an extended delay of notification without convincing a
judge of a compelling reason, or to permit a search to be kept secret pending the outcome
of an investigation. (2002) In his analysis of the “sneak & peek” provision, Lobaugh
further concludes that with the strict judicial oversight imposed upon the delayed
notification, it is unlikely that “sneak & peek” searches will become the rule rather than
the exception.
IV.
The Pen Register Law and Internet Surveillance
Section 216 of the Patriot Act (2001) redefines and applies the pen registry law to
the Internet. This provision also makes the orders allowing law enforcement to install
pen/trap devices valid throughout the United States, and forbids such devices from
capturing the contents of any communication.
Originally written with vague telephone-specific language the pen register law
enacted by Congress in 1986 allowed for the surveillance of addressing or the “to” and
“from” information transmitted over the telephone network, but did not clearly govern
Internet addressing surveillance. This Patriot Act provision redefines the pen register law
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to include specific language relating to computer network communications; thereby
applying the legal standards of the pen register law to the Internet.
Critics argue that the Patriot Act’s expanded definition now seems to include any
information sent by a computer such as Web surfing, e-mail messages, electronic faxes,
and any other electronic form of communication. Under this new definition, critics
argue, the government will be able to spy on ordinary Americans and the very nature of
electronic communication will allow them to obtain more than just addressing
information. However, a detailed legal analysis by Orrin Kerr (2003), a former federal
prosecutor, shows these criticisms of the Act to be unfounded, and further illustrates that
this provision actually expanded Internet privacy.
In a detailed review of the Patriot Act’s Internet surveillance measures, Professor
Orin Kerr (2003) of George Washington University Law School argues that the pen
register provision of the Patriot Act is misunderstood and that the critic’s arguments are
misplaced. Kerr points out that before the Patriot Act, it wasn’t clear if any statue limited
the government’s, or even a private person’s ability to obtain basic addressing
information about electronic communications. In Kerr’s opinion by now requiring a
court order to get that information, and making it a federal crime to get it without one the
Patriot Act as increased Internet privacy.
Kerr (2003) first argues that the critics ignore the fact that the pen register statue
is primarily a privacy law, grounded in legal precedence, that requires a court order to
obtain addressing information that has been voluntarily disclosed to a third party. Kerr
also argues that the critics fail to recognize that the ambiguous language of the pen
register law made it unclear if it applied to the Internet at all, conceivably leaving the
surveillance of Internet addressing information unchecked.
In support of his assertions Kerr (2003) presents several cases where the courts
have held that an individual has no reasonable expectation of privacy in information
revealed to a third party. Kerr considers this the disclosure principle: any information
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disclosed to a third person is not protected by the Fourth Amendment. One such case
highlighted by Kerr is United States v. Miller (1976) in which the Supreme Court stated,
“The Fourth Amendment does not prohibit the obtaining of information revealed to a
third party and conveyed by him to Government authorities”(Kerr, 2003) Kerr also cites
Smith v. Maryland (1979), where the Supreme Court held that there is no reasonable
expectation of privacy in a phone number dialed from a home because that information is
voluntarily conveyed to the telephone company. Professor Kerr further highlights several
recent cases in which the courts have applied the same rationale behind the disclosure
principle to the Internet.
Kerr (2003) further found that in a number of cases the courts have held that a
user cannot enjoy a reasonable expectation of privacy in non-content information sent to
an Internet Service Provider because the user has disclosed the information to the ISP.
Kerr first cites Guest v. Leis (2001) where the Sixth Circuit found no expectation of
privacy in non-content information. Kerr also notes that the courts have upheld the
capture of the subscriber’s name, billing address, and Internet Protocol Address
voluntarily given to Internet Service Providers. In citing Unites States v. Hambrick
(1999), Kerr notes the Fourth Circuit’s finding that - while a person may have an
expectation of privacy in content information, a person does not have an interest in the
account information given to the ISP in order to establish the e-mail account, which is
non-content information.
Professor Kerr (2003) also notes that the legal precedents set forth in these cases
set the stage for the pen register law, which satisfies the Fourth Amendment, because it
does not allow for the capture of content, but instead captures telephone numbers dialed
out and dialed in. With the disclosure principle in mind, Congress developed the pen
register law to allow for a relatively low threshold to obtain a court order. The law only
requires the government to certify to the court that the information likely to be obtained is
relevant to an ongoing criminal investigation. Originally written with vague telephonespecific language the pen register law enacted by Congress in 1986 governed telephone
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network surveillance and allowed the government to obtain a court order authorizing the
collection of strictly addressing or envelope information, but not the content of the calls.
The pen register law defined a pen register as “a device which records or decodes
electronic or other impulses which identify the numbers dialed or otherwise transmitted
on the telephone line to which such device is attached.” (Kerr, 2003) Under this
definition it was unclear if the pen register statue applied to the Internet.
With its telephone-specific language Kerr (2003) argues that it was unclear if the
pen register statue governed Internet addressing surveillance. However, in applying the
pen register law to the Internet the Patriot Act provision now clearly defines a pen
register to include language relevant to computer network communications. Kerr notes
that under the Patriot Act a pen register is defined as “ a device or process which records
or decodes dialing, routing, addressing, or signaling information transmitted by an
instrument or facility from which a wire or electronic communication is transmitted, and
such information shall not include the contents of any communication.” The Patriot
Act’s provision clearly applies the legal standards of the pen register law to the Internet,
which in Kerr’s opinion increased Internet privacy.
Kerr (2003) concludes that without the Patriot Act’s amendment to the pen
register statue, the government or anybody else could conceivably collect any noncontent information they wished over the Internet without restriction. In applying the pen
register laws to the Internet, Kerr argues that the Patriot Act denied the government the
power to conduct address surveillance without a court order, which limited government
power and blocked private entities from conducting address surveillance, thus protecting
privacy. Kerr also notes that the fear by the critics that the government may now collect
any electronic information should be assuaged by Act’s specific language - “such
information shall not include the contents of any communication”- clearly preventing the
government from collecting anything other than non-content information.
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Conclusions and Recommendations
Over the years, many of the laws used by law enforcement have evolved to keep
pace with the technologies and techniques employed by increasingly sophisticated
criminals. Likewise, many of the Congressional changes made through the Patriot Act
such as the roving wiretap provision simply bring the Foreign Intelligence Surveillance
Act up to date with criminal law. Furthermore, in light of the number of current
exceptions to the secrecy rule, and by allowing for the kind of coordinated counterterrorist efforts necessary to prevent future attacks the provision permitting intelligence
obtained through grand jury proceedings to be shared with intelligence and law
enforcement personnel, is clearly justified. Other changes, such as allowing law
enforcement to conduct “sneak & peek” searches, were judicially sanctioned for years
and the language of the Act and its required judicial oversight will further prevent abuse.
Finally, the modification to the pen register law achieves two goals. First it gives law
enforcement the tools they need to hunt terrorists who increasingly use the Internet to
plan, fund, and even execute terrorist attacks. Secondly, by applying the pen register law
to the Internet the Patriot Act has increased Internet privacy.
In examining only four provisions I have only begun to touch the tip of the legal
iceberg that is contained in the Patriot Act. Clearly there is more analysis needed.
However, with the legal analysis presented in support of these provisions I hope to have
illustrated that many of the critics are to quick to judge the Patriot Act and their fears are
misguided. Only time and the courts will tell if the Patriot Act succeeds in protecting the
American people while also protecting civil liberties. For now the Patriot Act appears to
achieve these goals by preserving the ideals of the Constitution while proving the tools
too ensure the safety of Americans.
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Works Cited
Beale, S. S., & Felman, J. (2002). The Consequences of Enlisting Federal Grand Juries in
the War on Terrorism. Assessing the Patriot Act’s Changes in Grand Jury
Secrecy. Duke Law School Public Law and Theory Research Paper Series,
Research Paper No. 27. July 2002.
Dowley, M. (2002). Government Surveillance Powers Under the USA PATRIOT Act: Is
It Possible to Protect National Security and Privacy at the Same Time? A
Constitutional Tug-of-War. Suffolk University Law Review, Vol. 36 Num. 165.
Kerr, O. (2003). Internet Surveillance Law After the USA PATRIOT Act: The Big
Brother That Isn’t. Public Law and Legal Theory Working Paper No. 043,
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