The Patriot Act

02:52 PM EDT on Tuesday, July 6, 2004

BY GERALD M. CARBONE
Journal Staff Writer

The USA Patriot Act has changed the laws to make it easier for the government to conduct surveillance in the United States.

Section 216 of the Patriot Act permits government agents to trace e-mail and monitor other Internet activities to find out with whom you're corresponding and which Web sites you visit.

The agents only have to certify to a federal judge that they intend to monitor your computer use based on suspicion that the surveillance is likely to produce information relevant to a criminal investigation.

The distinction between obtaining certification and obtaining a search warrant is significant: it's the difference between informing the court of an action versus seeking the court's permission. Some provisions of the Patriot Act allow "in-house" certification within the Justice Department.

Under federal law, communication, like property, is protected from illegal search and seizure by the Fourth Amendment to the U.S. Constitution.

However, the Patriot Act and other federal laws have made distinctions in the protections covering communications and records of communications.

Even before the Patriot Act, agents could obtain a court order allowing them access to electronic communications that had been in storage for 180 days.

Section 220 of the act permits any court overseeing a crime of terrorism to issue an order for electronic information wherever that information is stored "without geographic limitation."

The Patriot Act also specifies that telephone voice mail will be treated as stored e-mail, rather than as telephone conversations, which allows agents to listen to old voice mails without a search warrant.

Sneak and peek

The USA Patriot Act resolves a conflict in federal court rulings by explicitly authorizing "sneak-and-peek" search warrants.

A sneak-and-peek warrant, according to an analysis of the Patriot Act done by the American Law Division for Congress, allows agents to secretly enter a home or office and "search, observe, take measurements, conduct examinations, smell, take pictures, copy documents, download or transmit computer files and the like" and depart "without leaving notice of their presence."

Rule 41 of the Federal Rules of Criminal Procedure required agents to leave a warrant and a list of anything taken at a search sites. But federal courts had split on the issue of whether sneak and peek searches violate the Fourth Amendment's prohibition against unreasonable searches.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., in 1979 supported such searches: "the failure of the team executing the warrant to leave either a copy of the warrant or a receipt for the items taken did not render the search unreasonable."

But the 9th Circuit Court in San Francisco ruled in 1986 that "surreptitious searches and seizures of intangibles strike at the very heart of the interests protected by the Fourth Amendment. The mere thought of strangers walking through and visually examining the center of our privacy interests, our home, arouses our passion for freedom as does nothing else."

Section 213 of the Patriot Act, titled "Authority for Delaying Notice of the Execution of a Warrant," makes it legal for investigators to delay notification that a search has taken place when: they seize no tangible thing; and if the court finds "reasonable cause" that immediate notification "may have an adverse result" on an investigation.

Under the Patriot Act, the government need not tell a person that a space was searched for up to 90 days.

The Patriot Act makes it clear that investigators may apply for sneak and peek authorization "in any warrant or court order," not just those alleging a crime of terrorism.

Nationwide search powers

The Sixth Amendment of the Bill of Rights, enacted in 1791, requires that crimes be prosecuted in the districts where they occur.

Rule 41(a) of the Federal Rules of Criminal Procedure also directs federal judges to issue warrants only within their district: under the rule, a judge in Texas could not issue a search warrant in Rhode Island.

Now, Section 219 of the Patriot Act allows federal judges to issue nationwide search warrants in all terrorism cases, foreign or domestic.

Steven Brown, executive director of the Rhode Island Affiliate of the American Civil Liberties Union, said that the ACLU fears investigators will use nationwide search authority to go "judge shopping" -- seeking warrants in courts that are inclined to easily grant them, while circumventing districts that scrutinize warrant applications.

In seeking this authority, the Department of Justice told Congress that "the existing rule creates unnecessary delays and burdens for the government in the investigation of terrorist activities and networks that span a number of districts, since warrants must be obtained in each district."

The ACLU has also argued that the definition of terrorism in Section 219 is so broad that it could include pickets in a labor dispute, or groups such as Greenpeace or Operation Rescue that attempt to influence government policy.

The Patriot Act did not create the definition; it borrowed it from Title 18: Crimes and Criminal Procedure, which adopted this definition of terrorism in 1992:

"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; [and] appear to be intended to intimidate or coerce a civilian population; [or] to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping; and occur primarily within the territorial jurisdiction of the United States."

Staff writer Gerald M. Carbone may be reached at gcarbone [at] projo.com or 277-7434.

Tomorrow: Secrecy rules for grand juries are relaxed.