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Citation: 35 Ann. Rev. Crim. Proc. iii 2006

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-- The search text of this PDF is generated from uncorrected OCR text. 35 GEo. L.J. ANN. REv. CRIM. PR.oc. (2006) iii FISA and the PATRIOT Act: A Look Back and a Look Forward

Viet D. Dinh * Wendy J. Keefer**

TABLE OF CONTENTS

INTRODUCTION ...... iv

THE HISTORY OF THE INTERPLAY BETWEEN ORDINARY CRIMINAL INvESTIGATIONS AND FOREIGN INTELLIGENCE SURVEILLANCE: PuTTING THE AcT IN PERSPECTIVE ...... iv

THE USA PATRIOT AcT: THE FISA AMENDMENTS ...... xiii

I. Reevaluating The Wall ...... xiv

A. Section 218 (Scope ofFISA) ...... xv

B. Section 504 (Permissible Information Sharing) ...... xv

C. Section 203 (Defining Foreign Intelligence Information) ...... xvi

D. Section 905 (Mandated Information Sharing) ...... xvi

II. Gathering Information in the Information Age ...... xvii

III. Extending Accepted Law Enforcement Tools to Investigations of

Terrorism ...... xviii

A. Section 215 (Business Records) ...... xix

B. Section 505 (National Security Letters) ...... xx

THE INTERVENING YEARS: THE IMPACT OF THE USA PATRIOT AcT ...... xxi

I. The Department of Justice Reports ...... xxi

* Professor of Law, Georgetown University Law Center; A.B., J.D., Harvard University. ** Attorney at Bancroft Associates PLLC; former Chief of Staff to Assistant Attorney General for Legal Policy, United States Department of Justice. B.A. University of North Carolina (Greensboro), J.D., Campbell University Norman Adrian Wiggins School of Law. Many thanks to Lizette Benedi, Saritha Komatireddy, and Jaclyn Kessler for their invaluable contributions to this article. iv 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006)

II. Legal Challenges ...... xxvii

REAUTHORIZATION ...... xxix

INTRODUCTION When the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act ("USA PATRIOT Act," "PATRIOT Act," or "the Act") 1 was passed in the wake of the terrorist attacks of September 11th, it was done with the knowledge that much debate would likely arise from some of the changes the Act brought forth. With that in mind, Congress set certain more controver­ sial provisions to sunset at the end of 2005, at which time Congress would be able to use the experience of the intervening four years to devise what changes might be necessary. 2 As the reauthorization process that has occurred over the past few months draws to a close, the opportunity presents itself for practitioners to take a closer look at the history, context, and details behind the debate that the process has evoked. This article provides a historical overview of development of the law prior to the Act, particularly as it relates to government surveillance, and discusses key examples of both the legal changes the Act effectuated in connection with foreign intelligence surveillance and the problems these changes were intended to address.3 In addition, this article provides some important examples of the results the Act has produced in the four years since its passage. Finally, the article discusses the reauthorization of the Act's sunsetted provisions.

THE HISTORY OF THE INTERPLAY BETWEEN ORDINARY CRIMINAL INVESTIGATIONS AND FOREIGN INTELLIGENCE SURVEILLANCE: PUTTING THE ACT IN PERSPECTIVE One of the focuses-indeed, possibly the primary focus--of the PATRIOT Act was to effect key changes in the law of government surveillance. Thus, many of the most notable provisions of the Act were amendments to the Foreign Intelligence Surveil­ lance Act ("FISA"),4 Title ill of the Omnibus Crime Control and Safe Streets Act ("Title ll"),5 or the Electronic Communications Privacy Act ("ECPA"t; this article focuses on the Act's amendments to FISA. To understand how the PATRIOT Act

1. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) (codified as amended in scattered sections of 18 U.S.C., 47 U.S.C., 50 U.S.C.) [hereinafter PATRIOT Act]. 2. Section 224 of the Act provided for the expiration of sixteen of its provisions on December 31, 2005, requiring Congress to reauthorize those provisions in either their original or amended form by that date to avoid their expiration. See id. On December 30, 2005, the sunset date was amended, extending these provisions in their original form until February 3, 2006. See Pub. L. No. 109-160, 199 Stat. 2957 (2005). An additional amendment was made to the sunset date, extending it until March 10, 2006. See H.R. 4659, Pub. L. 109-170, 109th Cong. (2006). 3. This article cannot even scratch the surface of all the provisions of the Act or the implementing rules, regulations, or policies; nor does it address other counterterrorism measures and policies, including the status of enemy combatants, use of material witness warrants, or Administration policies regarding responding to Freedom of Information Act requests concerning counterterrorism activities. Instead, the focus remains on key amendments effectuated by the Act to the Foreign Intelligence Surveillance Act ("FISA"). 4. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511,92 Stat. 1783 (1978) (codified as amended in scattered sections of 18 U.S.C.). 5. Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (1968) (Title III codified as amended at 18 U.S.C. §§ 2510-2520 (2000 & Supp. III 2003)). 6. Electronic Communication Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986) (codified as amended in scattered sections of 18 U.S.C.). 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006) v altered the landscape of FISA and foreign intelligence, it is first necessary to review the historical development of national security and foreign intelligence surveillance law, particularly as it relates to electronic surveillance.7 In general terms, FISA provides a framework for the court approval process and subsequent conduction of foreign intelligence surveillance by the Executive Branch.8 But electronic surveillance began before the 1978 enactment of FISA. In 1934, Congress enacted Section 605 of the Federal Communications Act,9 which prohibited the interception and dissemination of the contents of wire and radio communications. Three years later, the Supreme Court interpreted that prohibition to apply to federal agents and consequently deemed evidence obtained through wiretaps inadmissible. 10 Yet despite these developments in the law, foreign intelligence surveillance was perceived differently. For much of the twentieth century it was generally accepted that the Executive Branch had some measure of authority to conduct electronic foreign intelligence surveillance without a warrant. For example, President Roosevelt authorized Attorney General Jackson to use wiretaps to conduct surveillance in limited circumstances related to national security: I have agreed with the broad purpose of the Supreme Court [Nardone] decision relating to wiretapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases; and it is also right in its opinion that under ordinary and normal circumstances wiretapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights. However, I am convinced that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation. It is, of course, well known that certain other nations have been engaged in the organization of propaganda of so called "fifth column" in other countries and in preparation for sabotage, as well as in actual sabotage. It is too late to do anything about it after sabotage, assassinations and the "fifth column" activities are completed. You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigating agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investifations so conducted to a minimum and to limit them insofar as possible to aliens. 1 Later, Attorney General Tom Clark advised President Truman that warrantless wire-

7. Current law is cited unless the law was changed by the PATRIOT Act. Where the Act made changes but the prior provision is being discussed, the prior edition of the United States Code is cited. Otherwise, all citations to the United States Code are made to the most current version. 8. See S. REP. No. 95-604, at 15 (1977), as reprinted in 1978 U.S.C.C.A.N. 3904, 3916 (aptly noting that FISA was an attempt to establish a "secure framework by which the Executive Branch may conduct legitimate electronic surveillance for foreign intelligence purposes within the context of this Nation's commitment to privacy and individual rights"). 9. 47 u.s.c. § 605 (1934). 10. See Nardone v. United States, 302 U.S. 379, 384 (1937); see also Nardone v. United States, 308 U.S. 338, 340 (1939) (extending the earlier decision to exclude evidence even indirectly obtained as the result of a prohibited interception). 11. See FINAL REPORT OF THE SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT To INTELLIGENCE ACTIVITIES, UNITED STATES SENATE, SUPPLEMENTARY DETAILED STAFF REPORTS ON INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS, S. REP. No. 94-755, Book. III, at 279 (1976) (hereinafter CHURCH COMMITTEE REPORT] (citing Franklin D. Roosevelt, Confidential Memorandum for the Attorney General (May 21, 1940)). vi 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006) tap surveillance was necessary in certain circumstances for security purposes. 12 Subsequently, with the exception of some curtailment of the use of wiretaps in the latter portion of the Johnson Administration, warrantless electronic surveillance was regularly used not only for purposes of national security, but also in cases of organized crime and domestic security. 13 President Eisenhower's Attorney General, Herbert Brownell, explained the need for the use of warrantless surveillance in a way that is arguably pertinent still. Those who would act to harm the government, he asserted: tum to the telephone to carry on their intrigue. The success of their plans frequently rests upon piecing together shreds of information received from many sources and many nests. The participants in the conspiracy are often dispersed and stationed in various strategic positions in government and industry throughout the country. 14 To a large extent, this view of both the need for and the authority to conduct warrantless wiretaps--even in connection with domestic matters-prevailed, despite the Supreme Court decisions regarding the Federal Communications Act. A separate line of Supreme Court cases holding that wiretapping absent a physical trespass on private property was outside the scope of the Fourth Amendment sup­ ported an acceptance of the authority to conduct limited warrantless wiretaps. Prior to enactment of the Federal Communications Act's broad statutory prohibition on wire intercepts, the Supreme Court in Olmstead v. United States considered whether the Fourth Amendment applied to the government's wiretapping activities. 15 Relying on the fact that the wiretaps at issue-in the basement of a large office building and on wires located on the streets-had been put in place without physical trespass, 16 the Court concluded that they did not implicate the Fourth Amendment because there was no search or seizure. 17 The Olmstead Court's physical trespass analysis of wiretaps remained the law for nearly thirty years until 1967 when the Supreme Court determined in Katz v. United States 18 that even a wiretap that did not require a physical invasion onto private property, such as a wiretap of a public telephone, constituted a search implicating the Fourth Amendment's general warrant requirement. In Katz, the FBI attached an electronic listening and recording device to the outside of a public telephone booth. 19 Relying upon the Olmstead line of Supreme Court precedent,20 the government argued that because no physical trespass upon private property occurred-in this

12. See id. (citing Letter from Tom C. Clark, Attorney General, to the President (July 17, 1946)). President Truman's surveillance activities may have gone beyond those of President Roosevelt by extending to domestic security cases. This expansion may have been inadvertent, as described by the Church Committee Report, resulting from a memorandum Attorney General Tom Clark sent to President Truman in which President Roosevelt's earlier policy was quoted, but not in its entirety. The quote did not include the portion of the memorandum from President Roosevelt that, though authorizing warrantless surveillance, stated "[y ]ou are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens." Jd. It is clear, however, that warrantless surveillance was authorized by both President Truman and President Roosevelt and that some surveil­ lance of citizens was possible, even under President Roosevelt's limitation. 13. See id. at 4-13; see generally William C. Banks & M.E. Bowman, Executive Authority for National Security Surveillance, 50 AM. U. L. REv. 1 (2000). 14. Herbert Brownell, The Public Security and Wire Tapping, 39 CORNELL L.Q. 195, 202 (1954). 15. 277 u.s. 438 (1928). 16. ld. at 457. 17. Jd. at 464. 18. 389 u.s. 347 (1967). 19. ld. at 348. 20. 277 U.S. 438 (1928); see also Goldman v. United States, 316 U.S. 129 (1942) (the first Supreme Court case to address "bugging"). 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006) Vll case, there was no intrusion into the phone booth-Fourth Amendment requirements did not apply. 21 The Court disagreed and instead relied upon later cases that had effectively eroded the underpinnings of Olmstead and its progeny.22 Refusing to tie the scope of the Fourth Amendment to "the presence or absence of a physical intrusion into any given enclosure,'m the Court determined that the government action implicated the Fourth Amendment because it violated Katz's "reasonable expectation of privacy," privacy upon which he justifiably relied when he entered the public phone booth and closed the door to make his call. 24 The decision in Katz established that the Fourth Amendment's protections applied to people rather than places or tangible things, thereby extending it to electronic surveillance regardless of the location of the person or the surveillance device. Yet this revised conception of the Fourth Amendment's reach did not change the under­ standing that some exceptions to the warrant requirement may still apply to govern­ ment surveillance conducted for national security purposes. Indeed, the Court in Katz explicitly reserved the issue of "[w ]hether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security."25 Having altered the general framework for establishing the constitutionality of wiretapping, the Katz decision highlighted the need for legal guidelines for the use of electronic surveillance.26 Thus, one year after the decision came down, Congress enacted Title 111.27 Although Title ill codified a general prohibition on both govern­ ment and private party electronic surveillance, it authorizes the government to conduct electronic surveillance for certain crimes after first obtaining the requisite court order?8 Most notably, Title ill also includes the following language: Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means,

21. See Katz, 389 U.S. at 352-53. 22. See id. at 353. 23. /d. 24. See id. at 360 (Harlan, J., concurring). Although the phrase "reasonable expectation of privacy" actually originated in Justice Harlan's concurring opinion, this phrase has been widely cited as representa­ tive of Katz's Fourth Amendment analysis. See, e.g., Kyllo v. U.S., 533 U.S. 27, 33 (2001) ("A Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable."); California v. Ciraolo, 476 U.S. 207, 211 (1986) ("The touchstone of Fourth Amendment analysis is whether a person has a 'constitutionally protected reasonable expectation of privacy."' (quoting Katz, 389 U.S. at 360)). 25. Katz, 389 U.S. at 359 n.23. 26. In addition to Katz, in 1967 the Supreme Court also decided Berger v. New York, 388 U.S. 41 (1967), which concluded that a New York state statute permitting wiretapping warrants upon less than probable cause did not provide sufficient safeguards against the type of general warrant prohibited by the Fourth Amendment. 27. Omnibus Crime Control and Sole Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (1968) (Title III codified as amended at 18 U.S.C. §§ 2510-2520 (2000 & Supp. III 2003)). 28. See 18 U.S.C. §§ 2516, 2518 (2000 & Supp. III 2003). Prior to the enactment in 1986 of Title I of the Electronic Communications Privacy Act ("ECPA"), which amended the Federal Wiretap Act (Title III) to include electronic communications, Title III applied only to wire and oral communications. See Pub. L. No. 99-508, 100 Stat. 1848 (1986). viii 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006)

or against an~ other clear and present danger to the structure or existence of the Government. 9 The Court first addressed the intent and significance of the above-quoted language in United States v. United States District Court for the Eastern District of Michigan ("Keith"P0 in which it concluded that the government must obtain a warrant before it can conduct domestic electronic surveillance for domestic security purposes?1 At the same time, the Court again declined to define the scope of the Executive Branch's authority to conduct foreign surveillance for national security purposes in the absence of a traditional warrant. 32 The defendants in Keith moved to compel the government to disclose information it obtained during warrantless electronic surveillance to enable the district court to decide whether that information was obtained unlawfully, thereby tainting the evidence upon which their indictment was predicated. 33 The Court maintained that the Executive Branch's use of electronic surveillance in matters of domestic concern was an understandable, but not necessarily welcome, development.34 Nonetheless, it concluded that the quoted language from Title ill did not expand, contract, or define any authority of the Executive Branch;35 rather, "Congress only intended to make clear that the Act simply did not legislate with respect to national security surveillances."36 Viewing the language as merely an acknowledgement that the Executive Branch may have some inherent surveillance authority, the Court then determined that neither the statute nor the inherent powers of the Executive Branch excepted all presidential action from Fourth Amendment requirements, particularly where, as in Keith, the surveillance was of a domestic organization. 37 Although the Court concluded that domestic warrantless surveillance for security matters was unconstitutional, it acknowledged the possible constitutionality of-and invited Congress to establish-a system other than the traditional magistrate ap­ proved warrant. The Court provided a description of a potential alternative system: It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of § 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e.g., the District Court for the District of Columbia Circuit or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in§ 2518. 38 Rather than taking the Court's suggestion to establish a separate system for sensitive domestic matters, Congress instead chose to enact FISA, thereby establishing a

29. 18 U.S.C. § 2511(3) (2000 & Supp. III 2003). 30. 407 u.s. 297 (1972). 31. See id. at 321. 32. /d. at 321-22. 33. See id. at 299-300. 34. See id. at 310-13. 35. /d. at 308. 36. /d. at 306. Prior to enactment of FISA, almost every court to confront the issue determined that article II, section 1 of the Constitution-providing that the President shall "preserve, protect and defend the Constitution of the United States," U.S. CoNST. art. II,§ 1, cl. 8-vested the Executive Branch with at least some authority, as an exception to the general warrant requirement, to conduct electronic surveil­ lance for the purpose of gathering foreign intelligence information. See, e.g., United States v. Truong, 629 F.2d 908, 912-14 (4th Cir. 1980); United States v. Buck, 548 F.2d 871, 875 (9th Cir. 1977); United States v. Butenko, 494 F.2d 593, 605 (3d Cir. 1974); United States v. Brown, 484 F.2d 418, 426 (5th Cir. 1973). But see Zweibon v. Mitchell, 516 F.2d 594, 633-51 (D.C. Cir. 1975) (dictum). 37. See Keith, 407 U.S. at 324. 38. !d. at 323. 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006) ix separate system for national security and foreign intelligence matters. In the years between the Keith decision focusing on domestic surveillance matters and FISA's enactment in 1978, investigations revealed unnerving use of surveillance under the guise of national security to monitor United States citizens involved in a wide range of activities, including anti-war protests and the civil rights movement.39 The results of these investigations refocused attention on the methods and use of intelligence gathering efforts purported to be for the benefit of national security and foreign intelligence rather than for domestic purposes; these results ultimately led to the passage of FISA. But notably, even while supporting and ultimately signing FISA into law in 1978, President Carter's Administration appeared to assert a continuing authority to engage in warrantless foreign intelligence surveillance in defense of national security.40 FISA established a structure for intelligence gathering relating to a foreign power or an agent of a foreign power.41 To administer this new system, the statute created a separate court to hear government applications for orders approving electronic surveil­ lance.42 This court, the Foreign Intelligence Surveillance Court ("FISC"), was origi­ nally to be comprised of seven judges appointed by the Chief Justice of the United States Supreme Court and selected from among sitting federal district court judges.43 The FISC now has eleven judges.44 Applications made to the FISC must provide the following information: ( 1) the identity of the Federal officer making the application; (2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application; (3) the identity, if known, or a description of the target of the electronic surveil­ lance; (4) a statement of the facts and circumstances relied upon by the applicant to justify his belief that (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power; (5) a statement of the proposed minimization procedures; (6) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance; (7) a certification or certifications by the Assistant to the President for National

39. Two separate congressional investigations were undertaken. The investigation in the Senate was chaired by Senator Frank Church, and the House of Representatives instigated its own investigation chaired by Representative Otis Pike (collectively known as the "Church-Pike investigations"). In addition, Vice President Nelson Rockefeller headed an investigation. 40. See Foreign Intelligence Surveillance Act of I978: Hearings on H.R. 5794, H.R. 9745, H.R. 7308, and H.R. 5632 Before the Subcomm. on Legislation of the House Comm. on Intelligence, 95th Cong. 15 (1978) (testimony of Att'y Gen. Griffin B. Bell) ("[T]he current bill recognizes no inherent power of the President to conduct electronic surveillance, and I want to interpolate here to say that this does not take away the power to the President under the Constitution."); but see S. REP. No. 95-604, at 25 (1977) (testimony of Att'y Gen. Griffin B. Bell) ("While it may seem strange for me to be indicating that we want to give up power that we now have, we do."). 41. See 50 U.S.C. § 1801 (2000) (defining "foreign power" and "agent of a foreign power"). In 2004, separate and apart from the amendments to FISA accomplished with the PATRIOT Act, the definitional section of section 1801 was amended to provide for surveillance of those, like the 9111 hijackers, who are not tied to a particular country or foreign power, but instead act as "lone wolf' terrorists. See 50 U.S.C.A. § 180l(b)(l)(C) (2005). 42. See 50 U.S.C.A. § 1803 (2005). 43. See 50 U.S.C. § 1803(a) (2000). The PATRIOT Act amended this provision to increase the number of FISC judges to eleven and to require that no fewer than three of the judges appointed reside within twenty miles of the District of Columbia. See 50 U.S.C.A. § 1803(a) (2005). 44. See id. X 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006)

Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of na­ tional security or defense and appointed by the President with the advice and consent of the Senate (A) that the certifying official deems the information sought to be foreign intelligence information; (B) that the purpose45 of the surveillance is to obtain foreign intelligence information; (C) that such informa­ tion cannot reasonably be obtained by normal investigative techniques; {D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801(e)46 of this title; and (E) including a statement of the basis for the certification that (i) the information sought is the type of foreign intelligence information designated; and (ii) such information cannot reasonably be obtained by normal investigative techniques; (8) a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance; (9) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application; (1 0) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchap­ ter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter; and (11) whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures47 apply to information acquired by each device.48 In reviewing applications for surveillance orders, FISC judges are instructed to issue ex parte orders approving the requested surveillance if the judge finds probable cause to believe (1) the target of the surveillance is a foreign power or its agent, and (2) the facilities or places where surveillance will occur are or are about to be used by that foreign power or agent. 49 FISC orders also have a specified time period after which an extension must be sought or the surveillance discontinued. 50

45. This language was changed from "the purpose" to "a significant purpose" by the PATRIOT Act, as discussed infra in THE USA PATRIOT AcT: THE FISAAMENDMENTS. 46. Those categories include "(I) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against (A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or (C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or (2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to (A) the national defense or the security of the United States; or (B) the conduct of the foreign affairs of the United States." 50 U.S.C.A. § l80l(e) (2005). 47. Minimization procedures are those procedures adopted by the Attorney General "to minimize the acquisition and retention, and prohibit dissemination" of information, not publicly available, that concerns a United States person. 50 U.S.C.A. § 180l(h) (2005); see also 50 U.S.C.A. § l824(a)(4) (2005). Minimization procedures must require that private information not constituting foreign intelli­ gence information and that identifies a United States person generally not be disseminated. /d.; see also 50 U.S.C.A. § l80l(i) (2005) (defining "United States person" to include citizens, aliens lawfully admitted for permanent residence, associations of persons a substantial number of which are citizens or alien legal permanent residents, and corporations incorporated in the United States unless the association or corporation is a foreign power). 48. 50 U.S.C. § l804(a) (2000) (prior to 2001 amendment). 49. See 50 U.S.C.A. § 1805(a) (2005). 50. See 50 U.S.C.A. § l805(e) (2005). 35 GEO. L.J. ANN. REv. CRIM. PROC. (2006) xi

Prior to the filing of an application for a FISC order permitting electronic surveil­ lance, FISA originally required that a Senate-confirmed Executive Branch official, designated by the President and working in the area of national security, certify that "the purpose of the surveillance is to obtain foreign intelligence information."51 Despite this requirement, FISA allowed that once information was intercepted via electronic surveillance, the information could be used for other purposes-namely, criminal prosecutions. In connection with criminal prosecutions, FISA permits disclosure of information to law enforcement only after prior authorization by the Attorney General.52 After obtaining information through FISA surveillance, the government, whether State or Federal, cannot use the information in a criminal trial or any other proceeding unless prior notice of its intended use is provided to the person against whom the informa­ tion will be used. 53 This permits the filing of appropriate motions to suppress the 4 information. 5 As a result, motions to suppress in criminal matters have produced the most thorough public review of the scope of FISA; indeed, litigation tied to interpreta­ tion and application of "the purpose" certification requirement was quite common. 55 Courts concluded that surveillance not for "the purpose" of obtaining foreign intelli­ gence is considered improper under FISA. 56 Many courts interpreted the "the purpose" requirement57 to mandate that foreign intelligence surveillance be the primary purpose of the surveillance. 58 This "primary purpose" test, however, devolved from a case involving pre-FISA surveillance activi­ ties, United States v. Truong. 59 Truong was convicted of espionage and several espionage-related offenses as a result of acquiring classified documents from a government employee and passing them on to someone he believed would provide them to the Vietnamese government during its negotiations with the United States in 1977.60 In an attempt to identify the government official who was providing Truong with the classified documents, the government engaged in warrantless wiretapping of Truong's telephone and placed listening devices in his apartrnent.61 When the case came before the Fourth Circuit, the court recognized the long­ acknowledged foreign intelligence exception to the warrant requirement. But it affirmed the district court's exclusion of evidence obtained through pre-FISA warrant­ less surveillance to the extent that the evidence was obtained after the government's

51. See 50 U.S.C. § l804(a)(7)(B) (2000) (prior to the 2001 and 2004 amendments). 52. See 50 U.S.C. § l806(b) (2000 & Supp. II 2002). 53. See 50 U.S.C. §§ l806(c), l806(d) (2000 & Supp. II 2002). 54. See 50 U.S.C. § l806(e) (2000 & Supp. II 2002) (establishing the grounds for filing a motion to suppress as being information unlawfully acquired or not acquired in conformity with the FISC approval order); see also 50 U.S.C. § 1806(f) (2000 & Supp. II 2002) (providing for in camera and ex parte review of the questioned information whenever the Attorney General provides an affidavit that "disclosure or an adversary hearing would harm the national security of the United States"). 55. See, e.g., United States v. Duggan, 743 F.2d 59 (2d Cir. 1984); United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987); United States v. Badia, 827 F.2d 1458 (11th Cir. 1987); United States v. Johnson, 952 F.2d 565 (1st Cir. 1991). 56. See, e.g., In reSealed Case, 310 F.3d 717, 725 (Foreign Int. Surv. Ct. Rev. 2002); United States v. Koyomejian, 970 F.2d 536, 540 (9th Cir. 1992). 57. This same language was also found in 50 U.S.C. §§ 1802(b) (2000) and 1823(a)(7)(B) (2000). 58. See Duggan, 743 F.2d at 77; Pelton, 835 F.2d at 1076; Badia, 827 F.2d at 1464; Johnson, 952 F.2d. at 572. But see United States v. Sarkissian, 841 F.2d 959, 964-65 (9th Cir. 1988). In this case, the Ninth Circuit refused "to draw too fine a distinction between criminal and intelligence investigations. 'Interna­ tional terrorism,' by definition, requires the investigations of activities that constitute crimes. That the government may later choose to prosecute is irrelevant." Id. (citations omitted). 59. 629 F.2d 908 (4th Cir. 1980). 60. ld. at 911-12. 61. ld. at 912. xu 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006) purpose for the investigation shifted from one focused on foreign intelligence­ identifying the government leaker-to one "primarily" driven by law enforcement and prosecutorial objectives.62 Acknowledging that most of the government's foreign intelligence investigations have a criminal element, the Fourth Circuit refused to adopt the government's position that "if surveillance is to any degree directed at gathering foreign intelligence, the executive may ignore the warrant requirement of the Fourth Amendment."63 The court likewise refused to adopt the defendant's position that warrantless surveillance is only proper when foreign intelligence gather­ ing is the sole purpose of the surveillance. Ironically, courts went on to adopt the Truong court's primary purpose test in interpreting FISA, despite the fact that its analysis and formulation was not based on FISA itself. Reliance on Truong to interpret the scope of FISA, though arguably incorrect, resulted in limiting FISA's scope to only those investigations the primary purpose of which was foreign intelligence gathering. Attempts to place limits on the foreign intelligence warrant exception and later on the scope of FISA likely arose as a result of fears that criminal investigations would take advantage of the standard and procedures provided in FISA to subvert the traditional warrant process of the Fourth Amendment. In spite of the primary purpose interpretation, very few motions to suppress successfully excluded evidence of ordinary criminal behavior obtained from FISA­ authorized electronic surveillance: [O]therwise valid FISA surveillance is not tainted simply because the government can anticipate that the fruits of such surveillance may later be used, as allowed by § 1806(b ), as evidence in a criminal trial. Congress recognized that in many cases the concerns of the government with respect to foreign intelligence will overlap those with respect to law enforcement.64 Thus, in spite of a provision in FISA for use of evidence obtained under FISA in criminal prosecutions, 65 the general view that the investigation of ordinary crime could not be the primary purpose of the relevant electronic surveillance took hold. 66 Nonetheless, this position was not universally accepted; in the early 1980s, several officials maintained that Truong was not valid after enactment of FISA. Rather, they concluded: [E]ven where the government may be considering prosecuting the target for crimi­ nal violations discovered during the counterintelligence investigation, the govern­ ment may continue to employ FISA rather than Title ill where significant foreign intelligence information is still being sought. Where no significant forei~n intelli­ gence interest remains in an investigation, FISA should no longer be used. 7 Despite these early attempts to distance the law from Truong, a wall between criminal investigations and foreign intelligence gathering arose in response to FISA. And though it remains unclear whether the statutory language of FISA required such a wall, the wall was solidified in 1995 when the Department of Justice policies issued

62. See id. at 915. 63. /d. 64. Duggan, 743 F.2d at 78; see also Pelton, 835 F.2d at 1075 ("Information gathered pursuant to FISA authorization may be used in a criminal prosecution with the authorization of the Attorney General." (citing 50 U.S.C. § 1806)). 65. See 50 U.S.C. § 1806 (2000 & Supp. II 2002). 66. See, e.g., United States v. Johnson, 952 F.2d 565, 572 (lst. Cir. 1991) ("Although evidence obtained under FISA subsequently may be used in criminal prosecutions, the investigation of criminal activity cannot be the primary purpose of the surveillance." (citing Duggan, 743 F.2d at 77)). 67. IMPLEMENTATION OF THE FoREIGN INTELLIGENCE SURVEILLANCE ACT, H.R. REP. No. 98-738, at 14 (1984). 35 GEO. L.J. ANN. REv. CRIM. PRoc. (2006) xiii governing the conduct of investigations enforced the separation between law enforce­ ment and intelligence operations.68 Thus, in creating a separate system for foreign intelligence gathering, whether mandated by its text or not, FISA established a sharp distinction between ordinary criminal investigations and foreign intelligence investiga­ tions. 69 In tum, investigators were instructed that too much information exchanged between law enforcement and intelligence agencies inappropriately breached the wall, and this distinction formed the basis upon which investigators were essentially required to withhold information from one another.70 The problems inherent in maintaining this wall between ordinary criminal and foreign intelligence investigations came to be realized by 2000 and 2001, resulting in proposals for reform of the 1995 procedures.71 Those reforms had yet to occur by September 11th, and the attacks of that day made all the more evident the need for communication between law enforcement and intelligence systems in the context of terrorism. Thus, in the wake of the attacks, steps were taken quickly to adjust the laws to address terrorist activities, which do not fit neatly into either the criminal or foreign intelligence paradigm. The PATRIOT Act constitutes the first attempt to make these adjustments.

THE USA PATRIOT ACT: THE FISA AMENDMENTS Almost immediately after the events of September 11th, the need for adjustments to the wall between foreign intelligence and criminal investigators became evident. Moreover, as the details of the September 11th plot were discovered, the importance of updating the tools of intelligence and criminal investigators by making provisions for new technologies became equally apparent. Thus, many of the post-September 11th legal changes made by the PATRIOT Act focused on modifying FISA and

68. See Memorandum from Janet Reno, U.S. Att'y Gen., to Director, Fed. Bureau of Investigation and U.S. Attorneys entitled Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations 2, 'l!6 (July 19, 1995) [hereinafter 1995 DOJ Guidelines] (providing that "the FBI and Criminal Division should ensure that advice intended to preserve the option of a criminal prosecution does not inadvertently result in either the fact or the appearance of the Criminal Division's directing or controlling the FI [foreign intelligence] or FCI [foreign counterintelligence] investigation toward law enforcement objectives.). Language such as that cited resulted in the Office of Intelligence Policy and Review ("OIPR") interpreting such direction as a wall preventing communication between the Criminal Division and those involved with foreign intelli­ gence or counterintelligence surveillance, shifting the focus away from the purpose of the investigation­ which was the focus of FISA-and onto the nature of the underlying investigation. See U.S. DEP'T OF JUSTICE, FiNAL REPORT OF THE ATTORNEY GENERAL'S REVIEW TEAM ON THE HANDLING OF THE Los ALAMOS NATIONAL LABORATORY INVESTIGATION ch. 20, at 721-34 (May 2000) [hereinafter AGRT REPORT]. 69. Following the AGRT REPORT, id., a Report by the General Accounting Office was released, which also highlighted issues concerning the primary purpose test's impact on coordination and information sharing between foreign intelligence and law enforcement, see U.S. GEN. AccouNTING OFFICE, FBI INTELLIGENCE INVESTIGATIONS: COORDINATION WITHIN JUSTICE ON COUNTERINTELLIGENCE CRIMINAL MATTERS Is LIMITED (2001). Then in January 2000 the Attorney General issued additional procedures in an attempt to address coordination problems and in August 2001, the Deputy Attorney General issued a memorandum along similar lines. See Memorandum from Larry D. Thompson, U.S. Dep. Att'y Gen., to Criminal Division, Office of Intelligence Policy and Review, and FBI entitled Intelligence Sharing (Aug. 6, 2001); Memorandum through Eric Holder, U.S. Dep. Att'y Gen., to U.S. Att'y Gen. entitled To Recommend that the Attorney General Authorize Certain Measures Regarding Intelligence Matters in Response to the Interim Recommendations Provided by Special Litigation Counsel Randy Bellows (Jan. 18, 2000). These documents, however, did not replace the 1995 policies and procedures. 70. See NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11 COMMISSION REPORT 78-80 (2004) [hereinafter THE 9/11 REPORT]. 71. See id. at 512, n. 234; see also AGRT REPORT, supra note 68, at 721-34; U.S. GEN. AccoUNTING OFFICE, FBI INTELLIGENCE INVESTIGATIONS: COORDINATION WITHIN JUSTICE ON COUNTERINTELLIGENCE CRIMI­ NAL MATTERS IS LIMITED 32 (2001). xiv 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006) related surveillance provisions. 72

I. REEVALUATING THE WALL The Act's most significant changes addressed the wall that had formed between intelligence and criminal investigators. The changes effectuated by the Act did not seek wholly to tear down the division between law enforcement and foreign intelli­ gence activities. However, the Act does open certain doors to prevent isolation both of investigators and the information they collect. As the National Commission on Terrorist Attacks ("9/11 Commission") determined following its investigation of the events leading up to and culminating in the attacks on September 11th, the isolation of information made it impossible for investigators to put together a number of clues about the impending attacks?3 To put all the pieces together, investigators must understand what those in other agencies of government (and divisions within those agencies) have discovered. Patrick Fitzgerald, U.S. Attorney for the Northern District of Illinois, illustrated this predicament well: I was on a prosecution team in New York that began a criminal investigation of Usama Bin Laden in early 1996. The team-prosecutors and FBI agents assigned to the criminal case-had access to a number of sources. We could talk to citizens. We could talk to local police officers. We could talk to other U.S. Government agencies. We could talk to foreign police officers. Even foreign intelligence personnel. And foreign citizens. And we did all those things as often as we could. We could even talk to al Qaeda members-and we did. We actually called several members and associates of al Qaeda to testify before a grand jury in New York. And we even debriefed al Qaeda members overseas who agreed to become cooperating witnesses. But there was one group of people we were not permitted to talk to. Who? The FBI agents across the street from us in lower Manhattan assigned to a parallel intelligence investigation of Usama Bin Laden and al Qaeda. We could not learn what information they had gathered. That was "the wal1."74 The Act aimed to cure precisely this type of lack of coordination. By 2001, little doubt existed that, whether the original drafters of FISA intended it or not, FISA surveillance and search orders were being limited to only those investigations in which foreign intelligence was "the primary purpose." With respect to the primary purpose test, Congress used the Act both to clarify and to relax this previously misconstrued standard, making it easier to collect intelligence under FISA. As Senator Feinstein explained on the floor of the Senate In many cases, surveillance will have two key goals-the gathering of foreign intelligence, and the gathering of evidence for a criminal prosecution. Determining which purpose is the "primary" purpose of the investigation can be difficult, and

72. Much debate has arisen surrounding provisions of the Act that effected legal changes outside FISA, including delayed notice search warrants, section 213 (codified at 18 U.S.C. § 3103a(b) (2000 & Supp. III 2003)), the definition of material support to terrorists, section 805 (codified at 18 U.S.C. § 2339(B) (2000 & Supp. III 2003)), just to name two. To do justice to those provisions discussed, this article undertakes review only of the key changes to FISA and related provisions of the Act. 73. See THE 9111 REPORT, supra note 70, at 263 ("The September 11 attacks fell into the void between the foreign and domestic threats. The foreign intelligence agencies were watching overseas, alert to foreign threats to U.S. interests there. The domestic agencies were waiting for evidence of a domestic threat from sleeper cells within the United States. No one was looking for a foreign threat to domestic targets."); see also id. at 254-65, 267-77. 74. Protecting Our National Security from Terrorist Attacks: A Review of Criminal Terrorism Investiga­ tions and Prosecutions, Before the S. Comm. on the Judiciary, 108th Cong. (2003) (statement of Patrick Fitzgerald, U.S. Attorney for the Northern District of Illinois), available at http://judiciary.senate.gov/ testimony.cfm?id=965&wit_id=2741. 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006) XV

will only become more so as we coordinate our intelligence and law enforcement efforts in the war against terror. Rather than forcing law enforcement to decide which purpose is primary-law enforcement or foreign intelligence gathering-this bill strikes a new balance. It will now require that a "significant" purpose of the investigation must be foreign intelligence gathering to proceed with surveillance under FISA. The effect of this provision will be to make it easier for law enforcement to obtain a FISA search or surveillance warrant for those cases where the subject of the surveillance is both a potential source of valuable intelligence and the potential target of a criminal prosecution. Many of the individuals involved in supporting the September 11 attacks may well fall into both of these categories. 75

A. SECTION 218 (SCOPE OF FISA) In order to permit some interlinking and overlap between criminal law enforce­ ment and foreign intelligence investigations, section 218 of the Act changed the scope of FISA. Perhaps the most notable change made to the entire counterterrorism environment involved the replacement of a single word with two new ones. Whereas FISA previously provided that "the purpose" of electronic surveillance conducted pursuant to FISA must be to obtain foreign intelligence information, the PATRIOT Act altered FISA to permit surveillance as long as the gathering of foreign intelli­ gence information was "a significant purpose."76 This amendment to FISA certifica­ tion requirements, while not altering the scope as much as if "the purpose" had merely been replaced with "a purpose," now expressly permits surveillance that has more than a single purpose. As such, it makes clear that electronic surveillance to obtain important foreign intelligence information is appropriate even if a criminal component to the overall investigation exists.

B. SECTION 504 (PERMISSIBLE INFORMATION SHARING) Section 504 of the Act also works in tandem with section 218 to redefine the relationship between law enforcement and intelligence. Not only is the scope of FISA no longer limited to those investigations whose primary purpose is foreign intelli­ gence, but investigators are also now permitted to consult with one another. Federal officers who conduct electronic surveillance or physical searches to acquire foreign intelligence information "may consult with Federal law enforcement officers to coordinate efforts to investigate or protect against" actual or potential attacks, sabotage or international terrorism, or clandestine intelligence activities of a foreign power or its agent.77

75. 147 CoNG. REc. Sl0591 (daily ed. Oct. 11, 2001) (statement of Sen. Feinstein). See also 147 CoNG. REc. S9623-0l (daily ed. Sept. 21, 2001) (statement of Sen. Graham) ("[A]s we saw on September 11, most terrorist acts have both a criminal and an intelligence component. Our foreign intelligence and domestic law enforcement agencies need to be able to share information in order to protect our citizens."); 147 CoNG. REc. Sl0560 (daily ed. Oct. 11, 2001) (statement of Sen. Orrin Hatch) ("By making these reforms, we are rejecting the outdated Cold War paradigm that has prevented cooperation between our intelligence community and our law enforcement agents. Current Jaw does not adequately allow for such cooperation, artificially hampering our government's ability to identify and prevent acts of terrorism against our citizens. In this new war, terrorists are a hybrid between domestic criminals and international agents. We must lower the barriers that discourage our law enforcement and intelligence agencies from working together to stop these terrorists. These hybrid criminals call for new, hybrid tools."). 76. 50 U.S.C.A. §§ 1804(a)(7)(B) (2005). 77. 50 U.S.C. §§ 1806(k)(l), 1825(k)(l) (2000 & Supp. II 2002). xvi 35 GEO. L.J. ANN. REv. CRIM. PR.oc. (2006)

C. SECTION 203 (DEFINING FOREIGN INTELLIGENCE INFORMATION) Although not a direct amendment to FISA, section 203 of the Act was equally important to enhancing coordination and information sharing. Most notably, section 203 defines "foreign intelligence information," provides for the sharing of that foreign intelligence information, and permits the sharing of grand jury information. According to section 203, "foreign intelligence information" includes the following: (A) information, whether or not concerning a United States person, that relates to the ability of the United States to protect against (i) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (ii) sabotage or international terrorism by a foreign power or an agent of a foreign power; or (iii) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or (B) information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to (i) the national defense or the security of the United States; or (ii) the conduct of the foreign affairs of the United States. 78 With that definition in mind, section 203 then expressly provides for the following sharing of information: Any investigative or law enforcement officer, or attorney for the Government, who by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to any other Federal law enforcement, intelligence, protec­ tive, immigration, national defense, or national security official to the extent that such contents include foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)), or foreign intelligence information (as defined in subsection (19) of section 2510 of this title), to assist the official who is to receive that information in the performance of his official duties. Any Federal official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information. 79 Moreover, by amending the Federal Rules of Criminal Procedure, which generally provide for the secrecy of grand jury proceedings, section 203(a) of the Act created an exception to the secrecy of those proceedings; the rules now permit disclosure of foreign intelligence information "to any Federal law enforcement, intelligence, protec­ tive, immigration, national defense, or national security official in order to assist the official receiving that information in the performance of his official duties."80 To avoid the improper use of grand juries to engage in intelligence gathering, however, the Act requires that the court be notified of any disclosure that occurs under this provision,81 and the Attorney General is required to provide for specific procedures to address instances in which the disclosure identifies a United States person.82

D. SECTION 905 (MANDATED INFORMATION SHARING) The information sharing permitted under the Act is not limited to Federal officers,

78. 18 U.S.C. § 2510(19) (2000 & Supp.III 2003). 79. 18 U.S.C. § 2517(6) (2000 & Supp. III 2003). 80. FED. R. CRIM. P. 6(e)(3)(C)(i)(V). 81. See FED. R. CRIM. P. 6(e)(3)(C)(iii). 82. Pub. L. No. 107-56, § 203(c), 115 Stat. 272, 280 (2001). 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006) xvii and in some instances the Act goes so far as to mandate such sharing. Section 504 of the Act expanded permissible information sharing to include State and local law enforcement under certain circumstances. For purposes of coordinating efforts to investigate or prevent various terrorist acts, Federal officers are now expressly permitted to consult with other Federal, State, and local officials.83 And, whereas section 203 permits information sharing, section 905 of the Act actually mandates information sharing by directing the Attorney General and other law enforcement heads to share foreign intelligence information gained in the course of criminal investigations with the Central Intelligence Agency. 84 Prior to the changes made by these sections-218, 203, 504 and 905-the restric­ tions on information sharing were so convoluted that agents and investigators too often erred on the side of nondisclosure. 85 The horrific results of that error were seen on September 11th and highlighted by the 9/11 Commission's Report following investigation of the events of that day. 86 The PATRIOT Act responded to this atmosphere of secrecy by causing a shift of the balance from erring toward nondisclo­ sure to encouraging disclosure. Although the provisions discussed thus far provided needed amendments to exist­ ing legal standards, they did not address the changes needed to account for recent technological advances. The aim of providing better access to information through appropriate channels was further aided by provisions of the Act that update the law to account for new and emerging technologies.

II. GATHERING INFORMATION IN THE INFORMATION AGE Terrorists can be well-funded and highly technologically advanced. 87 Prior to September 11th, our foreign intelligence and law enforcement officers did not always have access to the most recent technology. Existing law had been drafted in a world where communications focused on land-line telephones; thus, the tools available to law enforcement and their ability to use certain surveillance techniques on new technologies were hampered by the law's failure to recognize and adapt to recent

83. See 50 U.S.C. § 1806(k) (2000 & Supp. II 2002). 84. See 50 U.S.C.A. § 403-5b (2005). This section also set a deadline for the Attorney General and director of the CIA to establish guidelines governing the required information sharing. 85. See Craig S. Lerner, The USA PATRIOT Act: Promoting the Cooperation of Foreign Intelligence Gathering and Law Enforcement, 11 GEo. MASON L. REv. 493, 501-02 (2003) ("By 2001, FISA investigations proved to be of Byzantine complexity. In an effort to comply with the FISA, as it had been interpreted by the courts, and in particular its requirement that 'the purpose' of an investigation was to gather foreign intelligence, FBI and DOJ personnel conducted FISA investigations with informational 'walls' separating intelligence and law enforcement agents.") (citing U.S. GEN. AccoUNTING OmcE, FBI INTELLIGENCE INVESTIGATIONS: COORDINATION WITHIN JUSTICE ON COUNTERINTELLIGENCE CRIMINAL MATTERS Is LIMITED 14, 19-21, 24-25 (2001)). It was further observed that "agents in the late 1990's were honestly struggling to interpret what sort of cooperation and informational sharing the complex statute permitted and prohibited." /d. at 502. 86. See THE 9/11 REPORT, supra note 70, at 78-80, 267 (discussing the lack of coordinated information sharing), 328, 399-400 (recommending "unifying the many participants in the counterterrorism effort and their knowledge in a network-based information-sharing system that transcends traditional governmental boundaries"). 87. See, e.g., Matthew Lippman, The New Terrorism and International Law, 10 TuLSA J. CoMP. & INT'L L. 297, 303-304 (2003) ("The trend is towards increasingly lethal terrorist incidents and an escalating number of fatalities. This is encouraged by the enhanced technological sophistication of terrorists ...."); Craig 0. Thompson, Missing Links ... Genetically Altered Biological Weaponry: A Gift from the Biopreparat to the World Part One (Selections from "Hidden Trails"), THE J. OF COUNTERTERRORISM AND SECURITY INT'L, Vol. 9, No. 2 (2003) ("In the 21st Century, American lawmakers and their international counterparts must come to grips with the fact that well-funded, enterprising terrorist organizations actively solicit weapons of mass destruction (WMD). Make no mistake-these treacherous militants will use any WMD material and technology that comes into their hands, with no remorse."). XVlll 35 GEO. L.J. ANN. REv. CRIM. PR.oc. (2006) technological advancements. Several provisions of the PATRIOT Act seek to bring the law up to date with current technology. Just as Attorney General Brownell observed in 1954, those who seek to do us harm and to disrupt our government and our society rely upon technology to devise and carry out their plans from diverse and separated locations.88 Brownell's statement is arguably still true; however, traditional phones are no longer necessarily the communi­ cation technology of choice. Terrorists plot using disposable cell phones, satellite phones, and Internet communications,89 and investigators, both criminal and intelli­ gence, need a method for surveillance of these devices. Prior to enactment of the Act, the law provided: [U]pon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person, furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the elec­ tronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance.90 That section, having been amended by section 206 of the Act, now provides: [U]pon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person, or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance. 91 This change provides for roving wiretaps-surveillance targeting a person and the multiple points of surveillance from which that person may communicate, rather than simply a single place. Prior to this change, a separate order for each facility was necessary. Such a requirement arguably permitted suspected wrongdoers to thwart surveillance simply by changing modes or locations of communication more quickly than FISC orders could be obtained. This new provision in the law acknowledges the reality of mobile and disposable communications as well as the ability for persons to use publicly available means of electronic communications in an attempt to avoid detection and surveillance.

III. EXTENDING ACCEPTED LAW ENFORCEMENT TOOLS TO INVESTIGATIONS OF TERRORISM The ability to share information is only as effective as the ability to gather information in the first instance. Thus, along with providing for roving wiretaps, additional provisions were needed to expand intelligence resources of investigators operating under FISA resources to permit them to gain access to the same kinds of information and tangible items to which criminal investigators and grand juries have

88. See Brownell, supra note 14, at 202. 89. See Sen. Lindsey Graham, Should Congress Renew The Patriot Act, America's Cultural Debate, RoLL CALL, Mar. 29, 2004; see also Robert L. Jackson, U.S. Strikes Back; Security: Senate OKs Anti-Terrorism Program, L.A. TIMES, Oct. 12, 2001, at A13. ("Advocating the need for roving wiretap authority, Sen. Dianne Feinstein (D-Calif.), a Judiciary Committee member, explained that 'under current law, law enforcement must get a wiretap order for each individual phone line. Criminals and terrorists know this, so they often manage to defeat surveillance by simply moving locations or exchanging countless disposable or even stolen cell phones."'). 90. 50 U.S.C. § 1805(c)(2)(B) (2000) (prior to 2001 and 2004 amendments). 91. 50 U.S.C.A. § 1805(c)(2)(B) (2005) (emphasis added). 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006) xix access. The most controversial provision of the Act, section 215,92 (commonly referred to as the "library records" provision) did just that. Unlike changes in the coverage of FISA or the scope of electronic surveillance orders, section 215 focused on and extended a different tool of investigation-investigators' ability to obtain tangible items, such as business records.

A. SECTION 215 (BUSINESS RECORDS) Prior to the PATRIOT Act, investigators lacked legal authority to obtain tangible items outside a very limited category of "records."93 Whereas those gathering foreign intelligence information were limited in the types of items they could obtain, grand juries could and regularly did use their subpoena power to obtain a much broader range of items in ordinary criminal investigations.94 Section 215 provides foreign intelligence investigators similar authority to that granted to grand juries by permit­ ting investigators to seek an order for production of tangible items from the FISC.95 Orders may be sought under this section only by the Director of the Federal Bureau of Investigation or by a designee of the Director who holds a position at least as high as Assistant Special Agent in Charge.96 Applications for these orders must specify that the records sought are for an authorized investigation "to obtain foreign intelli­ gence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.'m Orders entered under section 215 are done ex parte, and a prohibition exists against disclosure of the application and order.98 This prohibition does not extend to communications by the party from whom records are sought to those "necessary to produce the tangible things.''99 Concerns over the breadth of this section led to a

92. 50 U.S.C. § 1861 (2000 & Supp. II 2002). A search of LexisNexis for news and wire stories mentioning this section of the Act brings up over 600 stories in just the last two years. See, e.g., Editorial, Patriot Act Needs Some Revision, WASH. TIMES, July 27, 2005, at A16; Editorial, In the Card Catalogs, N.Y. TIMES, June 21, 2005, at A20; Richard B. Schmitt, House Weakens Patriot Act's Library Provision, CIN. PosT, June 16, 2005, at AI; April Bethea, Petitions Demand Reader Privacy; Repeal of Section of Patriot Act Urged, ATLANTA J. CoNsT., Sept. 30, 2004, at B2; Sam Hodges, Bookstores Fighting For Your Privacy, CHARLOTTE OBSERVER, Sept. 19, 2004, at 6H; David Mehegan, Reading Over Your Shoulder The Push Is On to Shelve Part of the Patriot Act, BosTON GLOBE, Mar. 9, 2004, at E5. 93. See 50 U.S.C. § 186l(a)(l) (2000) (prior to 2001 amendment). 94. Grand jury subpoenas have been used to seek library and other records in connection with the 1997 murder of Gianni Versace, the Zodiac killer homicides, and the Unabomber. See, e.g., John G. Malcolm, USA PATRIOT Act Opposition More Heat Than Light, FuLTON CoUNTY DAILY REPORT, Vol. 11, No. 19 (Nov. 19, 2003). More recently, grand jury subpoenas have been used to seek library records from a public library, see Margarte Fosmoe, Libraries Scramble to Fill Lost Publication Subscriptions, SOUTH BEND TRIB., Mar. 19, 2003, at Dl; from the Roman Catholic Archdiocese, see C.A. Upholds Subpoena for Archdiocese Documents in Priest Abuse Investigation, METROPOLITAN NEws ENTER., July 26, 2005, at 4; and from records in connection with the investigation of lobbyist Jack Abramoff, see Peter H. Stone, Ensnared in the Abramoff Probes, THE NAT'L J., Vol. 37, No. 46 (Nov. 12, 2005). 95. See 50 U.S.C. § 1861 (2000 & Supp. II 2002). 96. The Director of the Federal Bureau of Investigations is the highest ranking official in the FBI and operates out of Washington, D.C.; individual field offices across the country are supervised by special agents in charge, followed by assistant special agents in charge. See Federal Bureau of Investigation, Your Local FBI Office Field Divisions, www.fbi.gov/contact/fo/fo.htm (last visited Mar. 1, 2006) (describing field office structure); see also Federal Bureau of Investigation, Organization, http://www.fas.org/irp/agency/ doj/fbi/org.htm. (last visited Mar. 1, 2006). 97. 50 U.S.C. § 1861(b)(2) (2000 & Supp. II 2002). Thus, foreign intelligence information cannot be obtained on United States persons unless the information is needed to protect against international terrorism or clandestine intelligence activities; it cannot be collected to obtain foreign intelligence information related to any investigation. For the definition of "international terrorism," see 50 U.S.C.A. § 1801(c) (2005). 98. See 50 U.S.C. §§ 1861(c), 1861(d) (2000 and Supp. II 2002). 99. See 50 U.S.C. § 1861(d) (2000 & Supp. II 2002) ("No person shall disclose to another person XX 35 GEo. L.J. ANN. REv. CRIM. PR.oc. (2006)

special recognition in its text that the investigative tool provided could not be used and an order could not be granted if the relevant investigation was based solely on First Amendment protected activities of a United States person. 100

B. SECTION 505 (NATIONAL SECURITY LETIERS) An additional means of gathering information, though not a FISA amendment, is also worthy of discussion here-national security letters ("NSLs"). NSLs are similar to administrative subpoenas, directing the recipient to provide specified documents and information to federal investigators; numerous statutes provide for the use of NSLs. 101 Historically, non-mandatory NSLs were issued to communications provid­ ers, who would generally comply voluntarily. 102 With the increase in privacy laws, voluntary compliance became more difficult, as it potentially exposed the communica­ tions provider to liability under various state privacy laws. 103 Thus, ECPA provided for mandatory compliance but was limited to those records "where there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is or may be a foreign power or an agent of a foreign power ...." 104 In 1993, Congress decreased the required nexus to a foreign power to permit the FBI to command the production of records if there is a connection with a suspected intelligence officer or suspected terrorist or other indication of spying. 105 Section 505 of the PATRIOT Act made minor additional changes to that single NSL provision; instead of a direct nexus with a foreign power, the provision now requires relevance to an investigation of international terrorism or clandestine intelligence activities. 106 In addition, section 505 provided for approval of NSLs by "a Special Agent in Charge in a Bureau field office designated by the Director." These changes were intended to harmonize the use of NSLs with existing grand jury subpoena standards in the ordinary criminal context: NSL authority requires both a showing of relevance and a showing of links to an "agent of a foreign power." In this respect, [it is] substantially more demanding than the analogous criminal authorities, which require only a certification of relevance.

(other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.") (emphasis added). Confusion over whether the limited exception to this nondisclosure provision would include communica­ tions with the recipient's attorney has led to proposed amendments to this section discussed infra in REAUTHORIZATION. 100. See 50 U.S.C. § 186l(a) (2000 & Supp. II 2002); see also 50 U.S.C.A. §§ 1805(a)(3)(A), 1824(a)(3)(A) (2005) (requiring a finding by FISC prior to issuance of any order for surveillance or search that no United States person is being considered a foreign agent subject to the procedures of FISA solely on the basis of First Amendment protected activities). "United States person" is defined as a citizen, legal permanent resident, unincorporated associations in which a "substantial number" of members are citizens or legal permanent residents, and corporations incorporated in the United States, as long as such associations or corporations are not themselves "foreign powers." 50 U.S.C.A. § 180l(i) (2005). 101. See, e.g., 12 U.S.C. § 3414 (2000 & Supp. III 2003) (regarding financial records relevant to international terrorism or counterintelligence investigations); 15 U.S.C. §§ 168l(u), 168l(v) (2000 & Supp. III 2003) (regarding credit records relevant to international terrorism or counterintelligence investigations); 50 U.S.C. § 436 (2000) (regarding records on government employees having access to classified information); 18 U.S.C. § 2709 (2000 & Supp. III 2003) (regarding stored wire and electronic communications records relating to investigations of international terrorism or clandestine intelligence activities). · 102. See Doe v. Ashcroft, 334 F. Supp. 2d 471, 481 (S.D.N.Y. 2004). 103. See id. 104. S. REP. No. 99-307, at 19 (1986). 105. See 18 U.S.C. § 2709(b) (2000 & Supp. 1112003). 106. See id. 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006) xxi

Because the NSLs require documentation of the facts supporting the "agent of a foreign power" predicate and because they require the signature of a high-ranking official at FBI headquarters, they often take months to be issued. This is in stark contrast to criminal subpoenas, which can be used to obtain the same information, and are issued rapidly at the local level. In many cases, counterintelligence and counterterrorism investigations suffer substantial delays while waiting for NSLs to be prepared, returned from headquarters, and served. The section would streamline the process of obtaining NSL authority .... 107 Each provision permitting the use of NSLs bars recipients of these letters from disclosing their receipt or any details about the government's request. 108 Section 2709, which was amended by section 505 of the Act and concerns stored wire and electronic communications records, is no different. 109 Thus, after the Act's amend­ ment highlighted this issue, questions arose as to whether attorneys could be con­ sulted and whether any process existed for the recipient to challenge an NSL. These questions animated concerns in the recent reauthorization debates and resulted in amendment to section 505.uo

THE INTERVENING YEARS: THE IMPACT OF THE USA PATRIOT ACT Although the PATRIOT Act aimed to address and cure specific legal deficiencies, only time and use of its provisions can provide a comprehensive measure of their effectiveness. Since its enactment in 2001, the PATRIOT Act has been the subject of innumerable news stories, reports, and commentary. The press is both good and bad, but few courts have been called upon to interpret or apply most of the Act's provisions. Instead, much of the available information about use of the Act's provi­ sions comes from the unclassified portions of reports from the Department of Justice.

I. THE DEPARTMENT OF JUSTICE REPORTS Given how quickly after September 11th the Act was passed, in addition to putting in place sunsetting dates for many provisions, the Act also included extensive reporting requirements for various Executive Branch agencies. 111 The requirement included both reports on instances in which the tools provided in certain sections, such as section 215, were used by the governmentu2 and also a report by the Office of the Inspector General in the Department of Justice ("OIG") on claims of civil rights or civil liberties violations resulting from use of the Act's provisions. 113 In addition, FISA has since its original enactment mandated annual reports on both the total number of applications and extensions for surveillance orders granted, modified, or denied. 114 Review of the FISA-mandated reports indicated a trend toward more FISA applica­ tions each year for several years prior to enactment of the PATRIOT Act. With the increased availability of surveillance tools incorporated in the Act, however, a

107. See Administration's Draft Anti-Terrorism Act of 2001: Hearing Before the House Comm. on the Judiciary, 107th Cong. 57-58 (2001). 108. See list of NSL provisions, supra note 101. 109. See 18 U.S.C. § 2709(c) (2000 & Supp. III 2003). 110. See discussion infra in REAUTHORIZATION regarding the inclusion of amendments to section 505 in reauthorization legislation to address these concerns. 111. See, e.g., 50 U.S.C. § 1862 (2000 & Supp. II 2002) (requiring reporting on use of section 215 of the Act). Sections 314, 324, 326, 328, 356, 357, and 359 of the PATRIOT Act, supra note 1, also have congressional or public reporting requirements in connection with the Act's banking provisions. 112. See 50 U.S.C. § 1862 (2000 & Supp. II 2002). 113. See PATRIOT Act, supra note 1, § 1001(3). 114. See 50 U.S.C. § 1807 (2000). xxii 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006) noticeable increase in applications appears beginning in 2002-the first full year of the PATRIOT Act. 115 Whether the increase in FISA applications is a direct result of the changes to FISA accomplished by the Act or simply the result of post-September 11th counterterrorism activities is unknowable, but the surge in applications did not begin immediately upon the Act's passage. 116 Indeed, in comparison with the 1005 applications made to the FISC in 2000, only 932 applications were made in 2001, the last two months of which were governed by the Act's new provisions. One complaint about these reports is that they only provide limited information from which one can analyze trends-the number of applications made and the number granted by the FISC. It is this secrecy-necessary to protect sensitive national security information­ that has led to claims of civil liberty concerns with the Act's amendments to FISA. The OIG reports that the Act required provide a framework for reviewing the Act itself and the use of the tools it provided. This review mechanism addresses the concern of much of the criticism of the Act, namely, its impact on civil liberties. Specifically, the Act instructed the Inspector General, an independent entity respon­ sible for reporting to the Department of Justice and to Congress, to designate one official to perform the following: 1. review information and receive complaints alleging abuses of civil rights and civil liberties by employees and officials of the Department of Justice; 2. make public through the Internet, radio, television, and newspaper advertise­ ments information on the responsibilities and functions of, and how to contact, the official; and 3. submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate on a semi-annual basis a report on the implementation of this subsection and detailing any abuses described in paragraph (1), including a description of the use of funds appropriations used to carry out this subsection. 117 In connection with the responsibilities under this provision, the OIG has advertised methods for filing complaints. Those advertisements have appeared in newspapers, on the radio, and by other means, including posters translated into Arabic and

115. See 1998 Arr'y GEN. ANN. FOREIGN INTELLIGENCE SURVEILLANCE AcT REP. TO CONG. 1 (reporting 796 applications for orders and extensions of orders for electronic surveillance or physical search under FISA, all of which were granted by the FISC); 1999 Arr'v GEN. ANN. FoREIGN INTELLIGENCE SuRVEILLANCE ACT REP. TO CoNG. 1 (reporting 886 applications for orders and extensions of orders for electronic surveillance or physical search under FISA, all of which were granted by the FISC, though not all were actually granted in 2000-the year the application was made); 2000 Arr'y GEN. ANN. FOREIGN INTELLI­ GENCE SuRVEILLANCE AcT REP. TO CoNG. 1 (reporting 1005 applications for orders and extensions of orders for electronic surveillance or physical search under FISA, all of which were granted by the FISC, along with several other applications made the prior year but not granted until 2000, bringing the total granted for that year to 1012); 2001 Arr'y GEN. ANN. FOREIGN INTELLIGENCE SURVEILLANCE AcT REP. TO CONG. 1 (reporting 932 applications for orders and extensions of orders for electronic surveillance or physical search under FISA, all of which were granted by the FISC, in addition to granting two additional applications filed in 2000); 2002 Arr'y GEN. ANN. FOREIGN INTELLIGENCE SURVEILLANCE AcT REP. TO CONG. 1 (reporting 1228 applications for orders and extensions of orders for electronic surveillance or physical search under FISA, 1226 of which were granted by the FISC, while two were approved as modified and became the subject of a government appeal to the Court of Review); 2003 Arr'v GEN. ANN. FOREIGN INTELLIGENCE SURVEILLANCE ACT REP. TO CONG. I (Apr. 30, 2004) (reporting 1727 applications for orders and extensions of orders for electronic surveillance or physical search under FISA, 1724 applications were granted and four were denied by the FISC in 2003); 2004 Arr'v GEN. ANN. FOREIGN INTELLIGENCE SuRVEILLANCE AcT REP. TO CoNG. 1 (Apr. 1, 2005) (reporting 1758 applications for orders and extensions of orders for electronic surveillance or physical search under FISA; of these, three applications were withdrawn by the government, and all of the remaining applications were granted by the FISC). 116. See sources cited supra note 115. 117. See PATRIOT Act, supra note I,§ 1001. 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006) XXlll distributed in Muslim communities. 118 On August 15, 2005, the OIG submitted its seventh and most recent report pursuant to this provision; 119 the eighth report is expected in early 2006. During the most recent reporting period of January 1, 2005, through June 30, 2005, the OIG received 834 complaints. 120 These complaints are described by the OIG as including any complaint "in which the complainant makes any mention of a section 1001- related civil rights or civil liberties violation, even if the allegation is not within the OIG's jurisdiction.''121 The complaints received include everything from allegations against private businesses to allegations of misconduct in United States prisons. 122 As with earlier reporting periods, the OIG determined that many of the complaints fell outside of the OIG's jurisdiction because they had no connection with the Department of Justice or its employees. In the end, the OIG concluded that only 210 complaints were within its jurisdiction and involved allegations requiring further review. 123 In the reported time period of the first half of 2005, the OIG opened seven new investigations. 124 Those investigations included a complaint from a former Bureau of Prisons correctional officer concerning negative comments directed at Muslim inmates and a Muslim officer and six instances of allegations by Muslim inmates about alleged mistreatment by correctional officers based on the inmates' religion. 125 When the complaints raise management issues and not civil liberties concerns, the complaints are often referred to components within the Department of Justice for further handling. 126 Of those that were retained within the jurisdiction of OIG, further investigation was deemed necessary in thirteen from the first six months of 2005; none of those thirteen actually raised complaints relating to the use of any provision of the PATRIOT Act. 127 In total, since the Act's passage, the OIG has received 7,136 complaints. 128 After initial review of those complaints, OIG staff determined that 3,902 of them, or slightly more than half, required no further investigation. 129 An additional 2,144 raised allegations against agencies or entities outside the Department of Justice,

118. See Implementation of the USA PATRIOT Act: Hearing Before Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 109th Cong. (May 10, 2005) (statement of Glenn A. Fine, Inspector General, United States Dep't of Justice) [hereinafter OIG Statement]. 119. U.S. DEP'T OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, REPORT TO CONGRESS ON IMPLEMENTATION OF SECTION 1001 OF THE USAPATRIOT Acr (Aug. 15, 2005). Prior reports were submitted by the OIG on July 15, 2002 (reporting on activities from October 26, 2001, through June 15, 2002), January 2003 (reporting on activities from June 16, 2002, through December 15, 2002), July 17, 2003 (reporting on activities from December 16, 2002, through June 15, 2003), January 27, 2004 (reporting on activities from December 16, 2003, through June 21, 2004), and March 11,2005 (reporting on activities from June 22, 2004, through December 31, 2004). All reports are available at http://www.usdoj.gov/oig/special/ index.htm. 120. /d. at 5. 121. See id. at 4 n.3. 122. See id. at 4-10. 123. See id. at 4. 124. See id. at 6. 125. See id. at 6-7. 126. /d. at 5. 127. /d. at 5-8. The report describes the types of complaints received. Those descriptions reveal that to-date the majority of civil liberties complaints received by OIG result from potential discrimination occurring in federal prisons rather than related to the use of the Act's surveillance and search tools. The allegations include mistreatment of the Koran by prison officials and other conduct aimed at the Muslim religion. 128. See OIG Statement, supra note 118. 129. See id. xxiv 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006)

"including other federal agencies, local governments, or private businesses."130 The OIG determined 970 of the remaining 1,090 dealt with management issues and were thus referred to the proper component division of the Department of Justice.I 3 I An additional ninety complaints were referred to components of the Department of Justice for further investigation, and thirty investigations were opened by the OIG. 132 Interestingly, of the thousands of complaints received by the OIG, only one raises allegations that the OIG has characterized as alleging potential misconduct related to use of any provision of the PATRIOT Act. I33 That complaint, currently the focus of an ongoing OIG investigation, involves the erroneous identification of Muslim lawyer Brandon Mayfield in connection with the 2004 Madrid train bombing. 134 Mayfield was arrested and held for two weeks as a "material witness" in connection with the bombings.I35 Under review in the Mayfield investigation is the FBI's investigation and arrest of Mayfield, who resides in Oregon, including the FBI's use of any FISA surveillance or search provisions that might implicate the Act.I 36 To date, the Mayfield case remains unresolved, and no other complaint has arisen that implicates use of the Act. In addition to the OIG reports regarding civil liberties complaints, the Department of Justice has provided numerous reports directly to Congress on its use of provisions of the Act; some of those reports or parts of reports are classified, but some information is public. The Department of Justice has also released its own reports on its use of the Act. In a July 2004 report, 137 the Department of Justice provided examples of how it has used several provisions of the Act, including elimination of the solid wall between law enforcement and intelligence in sections 218 and 504 and the information sharing permitted under sections 203.I 38 The Department of Justice identified the case against Jeffrey Leon Battle as an example in which the new ability to share information resulted in the apprehension of potential terrorists. I39 Battle was implicated in a conspiracy to fight against the United States in Afghanistan. I40 In October 2003, Battle entered into a plea agree­ ment with the United States, acknowledging his involvement in acts intended to culminate in fighting against the United States. 141 Battle was sentenced to 18 years in prison. 142 According to the Department of Justice, sections 218 and 504 removed a dilemma that would have otherwise faced investigators: whether to arrest Battle immediately to prevent any harm he might cause, thereby risking apprehension of

130. /d. 131. See id. 132. See id. 133. See id. 134. See id. 135. See id. 136. See id. 137. U.S. DEP'T oF JusTICE, REPORT FROM THE FIELD: THE USA PATRIOT AcT AT WoRK (2004) [hereinafter REPORT FROM THE FIELD]. 138. The use of other provisions was also described, namely the use of new criminal laws regarding terrorist financing, asset forfeiture, biological weapons, cyber-terrorism, mass transportation protection, and money laundering. !d. at 9-15. The report also provided examples of the use of sections 219 and 200 (nationwide search warrants), section 210 (obtaining records from communications service providers), and section 212 (permitting emergency disclosures by electronic communications service providers), among others. 139. /d. at 5-6. 140. See Plea Agreement at 'II 4, United States v. Jeffrey Leon Battle, No. CR 02-399-JO (D. Or. Oct. 16, 2003). 141. See id. 142. See Judgment and Commitment, United States v. Jeffrey Leon Battle, No. CR 02-399-JO (D. Or. Nov. 26, 2003). 35 GEo. L.J. ANN. REv. CRIM. PR.oc. (2006) XXV

others involved in the conspiracy with Battle. 143 These provisions of the Act permit­ ted FBI agents to conduct FISA surveillance while keeping prosecutors informed of what they learned, thus enabling the ultimate arrest of all seven members of the conspiracy, rather than just Battle. 144 According to the Department of Justice's July 2004 Report, the high profile case of former University of Southern Florida Professor Sami Al-Arian provides another case study of the use of the Act. 145 Although the case was originally reported as a success of the Act, the recent acquittal of Al-Arian on some of the charges brought against him was reported as a blow to the Act and to the Department of Justice's counterterror­ ism efforts. 146 Electronic surveillance allegedly revealed that Al-Arian was providing support to the terrorist Palestinian Islamic Jihad ("PIJ"), leading to his indictment and prosecution on terrorism-related charges. 147 But the jury deadlocked on a number of charges against Al-Arian, and the government must now decide whether to retry him on those charges, including a charge of conspiracy to maim or murder. 148 Al-Arian is reportedly in plea negotiations with prosecutors in connection with the charges on which he was not acquitted. 149 Nonetheless, regardless of whether Al-Arian is ultimately acquitted, information obtained pursuant to FISA surveillance contributed to his arrest and indictment.150 Recently, Attorney General Alberto Gonzales provided a list of successful criminal prosecutions of terrorists in 2005, including, among others, the following: 1. The November 22, 2005 conviction of Ahmed Omar Abu Ali on charges of conspiracy to provide and providing material support and resources to al Qaeda and related charges; 2. The November 23, 2005 conviction of Uzair Paracha on charges of providing material support to al Qaeda; 3. The April 27, 2005 conviction of Hemant Lakhani and sentencing to 47 years in prison on charges of attempting to sell shoulder-fired missiles to a terrorist group for the purpose of shooting down U.S. airliners; 4. The April 26, 2005 conviction of Ali Al-Timimi and sentencing to life in prison on 10 charges related to activities encouraging others to receive terrorist military training to fight U.S. troops in Afghanistan; and 5. The April 24, 2005 guilty plea of Zacarias Moussaoui in connection with his participation in the September 11th conspiracy. 151 Although the statement did not provide details as to the use, if any, of the tools of the Act, it is these types of prosecutions with which the Act's provisions are intended to assist counterterrorism efforts. The information sharing provisions of the Act and the removal of impediments to information sharing are attributed in the progress of a

143. See REPORT FROM THE FIELD, supra note 137, at 5-6. 144. See id. at 6. 145. See id. 146. See, e.g., John-Thor Dahlburg, Ex-Professor Acquitted in Patriot Act Test Case, L.A. TIMES, Dec. 7, 2005, at A16; SpencerS. Hsu & Dan Eggen, Fla. Professor Is Acquitted in Case Seen as Patriot Act Test Case, WASH. PosT, Dec. 7, 2005, at AOl. 147. Michael Fechter, Felds Describe Al-Arian Code, TAMPA TRIB., Aug. 17, 2005, at metro 5. 148. See, e.g., Peter Whoriskey, Ex-Professor Won Case But Not His Freedom, WASH. PosT, Dec. 14, 2005, at A02. 149. See, e.g., Pedro Ruz Gutierrez, Al-Arian May Avoid New Terror Trial, ORLANDO SENTINEL, Jan. 7, 2006, at Bl; Ronald Radosh, The Professor of Terror; Why Sami Al-Arian Got Off This Time, WKLY. STANDARD, Jan. 2-Jan.9,2006,at 17. 150. See id.; see also Angie C. Marek and Silla Brush, A Stunning Verdict In the War on Terror, U.S. NEws & WoRLD REP., Vol. 139, No. 23, at 20-21 (Dec. 19, 2005). 151. See Press Release, U.S. Dep't of Justice, Attorney General Alberto R. Gonzales Highlights Success in the War on Terror at the Council of Foreign Relations (Dec. 1, 2005), available at http://www.usdoj.gov/opalpr/2005/December/05_opa_64l.html. xxvi 35 GEO. L.J. ANN. REv. CRIM. PROC. (2006) number of counterterrorist efforts, including the successful prosecutions of individu­ als involved in an al Qaeda drugs-for-weapons plot in San Diego, California; the prosecution of individuals such as Ali AI-Tirnirni and others involved with the terrorist group Lashkar-e-Taiba, which is linked to al Qaeda; the prosecution and conviction of Mohammed Ali Hasan Al-Moayad and Mohsehn Yahya Zayed for conspiring to provide material support to al Qaeda and the terrorist group Hamas; and the guilty plea of Enaam Amout for diverting charitable funds to Osama Bin Laden. 152 Although statements and testimony by Department of Justice officials obviously focus on the successes of the Act, reports to Congress from the Department of Justice provide information on all use of specified provisions, successful or not. Further, Congress has not shied away from seeking additional information from the Executive Branch on its implementation of a number of the Act's provisions 153 or from drafting its own reports about FISA. Indeed, the first truly comprehensive oversight of FISA implementation and use, predominantly by the FBI, began in 2001 as the result of a bipartisan investigation by the Senate Judiciary Comrnittee. 154 In addition, there is no shortage of news reports providing information over the past few years about 5 purported uses of the Act. I 5 In most news reports, however, it appears that even claimed abuses do not relate directly to the Act, but rather to other counterterrorism activities. The foregoing indicates that in the years since its passage, at least some of the investigative tools and procedures provided for by the PATRIOT Act have been used by law enforcement and intelligence officials. Although few formal legal challenges exist, not all uses have gone unchallenged.

152. USA Patriot Act: A Review for the Purpose of Its Reauthorization: Oversight Hearing Before H. Committee on the Judiciary, 109th Cong. (2005) (statement of U.S. Att'y General Alberto R. Gonzales). 153. See Questions from H. Committee on the Judiciary, Chairman F. James Sensenbrenner, Jr. and Ranking Minority Member John Conyers, Jr. (April 1, 2003) (on file with author); Response from Jamie E. Brown, Acting Assistant Attorney General, Office of Legislative Affairs (May 13, 2003) (on file with author). 154. See SENATORS PATRICK LEAHY, CHARLES GRASSLEY, AND ARLEN SPECTER, FBI OVERSIGHT IN THE 107TH CONGRESS BY THE SENATE JUDICIARY COMMITTEE: FISA IMPLEMENTATION FAILURES, AN INTERIM REPORT (Feb. 2003), available at http://www.senate.gov/-grassley/releases/2003/po3ros-25c.pdf (discussing the oversight activities of the Senate Judiciary Committee and detailing problems with information sharing, technology and training at the FBI). 155. See, e.g., Katie Hafner and Matt Richtel, Google Resists U.S. Subpoena of Search Data, N.Y. TIMES, Jan. 20, 2006, at AI (stating, in discussing a recent subpoena to Google for information related to online pornography, that "[u]nder the antiterrorism law known as the USA Patriot Act, for example, the Justice Department has demanded records on library patrons' Internet use"); Josh Gerstein, Patriot Act Searches Are Rare, N.Y. SuN, Nov. 16, 2005, at 1 (discussing reported use of section 216's sneak and peek authority); David Sarasohn, Patriot Powder Keg, SUNDAY OREGONIAN, May 15, 2005, at F01 (discussing difficulty of tracking use of many of the Act's provisions as a result of the confidentiality requirements associated with them); Timothy Egan, Sensing the Eyes of Big Brother & Pushing Back, N.Y. TIMES, Aug. 8, 2004, at 20. (identifying use of the Act to search the home of attorney, Brandon Mayfield, to charge Saudi graduate student al-Hussayen with supporting terrorist groups by maintaining a number of Islamic web sites). None of the reported uses have resulted in identifiable abuses of the Act's provisions. 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006) xxvii

156 II. LEGAL CHALLENGES While the post-September 11th legal front has presented a number of questions, only a handful have included direct challenges to application of the Act. Most notably, the United States Foreign Intelligence Surveillance Court of Review upheld the Act's FISA amendments, particularly in connection with section 218's change to FISA's overall scope from that requiring "the purpose" to be foreign intelligence to matters in which foreign intelligence was simply "a significant purpose." 157 In re: Sealed Case presented the first appeal to the FISA-created Court of Review since its inception in 1978. 158 In this matter, the government appealed from a FISA court surveillance order, arguing that it impermissibly imposed certain restrictions on the govemment. 159 The government originally sought a FISC order for surveillance of a United States person whom the government reasonably believed was aiding, · abetting, and/or conspiring with others in international terrorism. 160 The FISC had issued the requested order but conditioned it upon certain restrictions on the coopera­ tion between the intelligence officials and law enforcement officials: [L]aw enforcement officials shall not make recommendations to intelligence offi­ cials concerning the initiation, operation, continuation or expansion of FISA searches or surveillances. Additionally, the FBI and the Criminal Division shall ensure that law enforcement officials do not direct or control the use of the FISA procedures to enhance criminal prosecution, and that advice intended to preserve the option of a criminal prosecution does not inadvertently result in the Criminal Division's direct­ ing or controlling the invest~ation using FISA searches and surveillances toward law enforcement objectives. 1 The FISC order thus attempted to maintain the pre-PATRIOT Act wall between law enforcement and foreign intelligence. The government sought review of the FISC's restrictions and argued (1) that FISA had never contained any primary purpose requirements, but (2) even if it did, the . PATRIOT Act eliminated that requirement. 162 The Court of Review ruled in the government's favor, but only after carefully describing the history of FISA and its interpretation by courts and the government. The court agreed in principle with the government's conclusion that FISA contained neither language to support the ac­ cepted dichotomy between law enforcement and intelligence nor the requirement that foreign intelligence be the "primary purpose" of any FISA ordered surveillance. 163 Yet, the court also pointed out that the amendment contained in section 218 of the PATRIOT Act made the dichotomy real: "In short, even though we agree that the original FISA did not contemplate the 'false dichotomy,' the Patriot Act actually did-which makes it no longer false." 164 Regardless of whether the primary purpose test was ever a correct interpretation of FISA, the Court of Review concluded that, in.

156. Those cases involving provisions of the Act that have not been discussed earlier are not discussed in the text of this article. Those cases include, but are not limited to, Humanitarian Law Project v. Ashcroft, 380 F. Supp. 2d 1134 (W.O. Cal. 2005) (concluding that the terms "training," "expert advice and assistance," and "service" in the description of what constitutes material support were unconstitutionally vague), and A.C.L.U. v. United States Dep't of Justice, 265 F.Supp. 2d 20 (D.D.C. 2003) (considering FOIA requests for information on use of PATRIOT Act provisions and the government's claimed exemptions to disclosure under FOIA). 157. See In re: Sealed Case, 310 F. 3d 717 (Foreign Int. Surv. Ct. Rev. 2002). 158. See id. at 719; see also 50 U.S.C.A. § 1803(b) (2005). 159. See In re: Sealed Case, 310 F.3d at 719. 160. See id. at 720. 161. ld. 162. See id. at 721-22. 163. See id. at 721-27. 164. /d. at 735. xxviii 35 GEo. L.J. ANN. REv. CRIM. PR.oc. (2006) light of the amendments made to FISA by the PATRIOT Act, no justification or authority remained upon which the FISC could impose the restrictions found in the relevant surveillance order. 165 Predictably, the FISA amendments made by section 215 of the PATRIOT Act have also resulted in litigation. Rather than a direct challenge, however, this section has been the focus of numerous Freedom of Information Act ("FOIA") requests about use of the provision, under which the government has claimed an exemption to producing all the data requested. 166 In cases brought by the American Civil Liberties Union ("ACLU"), the issues presented do not relate directly to the constitutionality of any part of section 215, but rather focus on the government's assertion of exemptions to FOIA, namely, whether those exemptions are proper and whether the ACLU is entitled to expedited handling of these FOIA requests. 167 FOIA request disputes also focus on information the ACLU has sought regarding other provisions of the Act, seeking information on how often the Department of Justice has used surveillance and search and seizure provi­ sions, including, among others, section 213 168 (delayed notice search warrants), section 206 (roving search warrants), and section 215. The United States District Cout:t for the District of Columbia determined that expedited handling of the FOIA request was appropriate due to extensive media interest in the specific section at issue-section 215. 169 Earlier, however, that same court concluded that certain information requested relating to the use of these provisions was exempt from FOIA disclosure. 170 In the earlier decision, after in camera review of the information sought by the FOIA request, the district court determined that, with only one exception, the documents at issue were not responsive to the request. 171 In the single instance in which the document was responsive, the aggregate, statistical information was protected by exemption 1 to FOIA, which protects from FOIA disclosure information that would reveal intelligence activities, sources, or methods that could be expected to damage national security. 172 Despite the number of FOIA requests and legal battles about responding to those requests, no court has considered the substantive criticisms circling section 215, specifically its implicit inclusion of library and other highly sensitive records as potentially subject to an order and the prohibition on those receiving orders for these records from disclosing information about such receipt. Concern about these issues led to amendments to this provision when it was reauthorized as discussed below. The most directly-challenged use of the PATRIOT Act provisions discussed here concerns NSLs. More specifically, some courts have identified constitutional infirmi­ ties in the prohibition on disclosure by recipients of NSLs and in the lack of any clear

165. See id. at 746. 166. See, e.g., A.C.L.U. v. United States Dep't of Justice, 321 F. Supp. 2d 24 (D.D.C. 2004); see also A.C.L.U. v. United States Dep't of Justice, 2005 U.S. Dist. LEXIS 3763 (N.D. Cal. Mar. 11, 2005). 167. See id. 168. The actual use of a delayed notice warrant pursuant to section 213 of the Act (codified at 18 U.S.C. § 2709 (2000 & Supp. III 2003)) has been challenged in at least one defendant's motion to suppress evidence, but in that case the challenge was not to the propriety of delayed notice. Rather the claim was that the agent conducting a "sneak and peak" search violated the order's expressed prohibition on the seizure of any items by removing a firearm from the location to test it for operability. See United States v. Mikos, 2003 U.S. Dist. LEXIS 19458 (E.D. Ill. Oct. 27, 2003). The Court disagreed, concluding that the officer's actions did not constitute a seizure in violation of the warrant, and refused to suppress the evidence. 169. See A.C.L.U. v. United States Dep't of Justice, 321 F. Supp. 2d 24, 31-32 (D.D.C. 2004). 170. See A.C.L.U. v. United States Dep't of Justice, 265 F. Supp. 2d 20, 30 (D.D.C. 2003). 171. See id. at 21-22. 172. See id.; see also 5 U.S.C. § 552(b)(l) (2000 & Supp. III 2003). 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006) xxix procedure for judicial review of such letters. 173 Interestingly, the constitutional infirmities identified by courts existed prior to the Act's amendment to a single NSL provisions. Not until passage of the PATRIOT Act, however, was there any adjudica­ tion of the NSL processes that had existed since the mid-1980s. With no means to enforce or to quash NSLs and with NSLs being issued primarily to third parties with little reason to refuse compliance, challenges to the issuance of these administrative subpoenas only occurred after the publicity they garnered with the PATRIOT Act. The Southern District of New York was the first court to discuss these constitu­ tional issues at length in 2004 in Doe v. Ashcroft. 174 The court sustained the NSL recipient's as-applied constitutional challenge, concluding that the "gag rule" prohibit­ ing any disclosure of receipt of (or information about) the NSL violated the First Amendment. 175 The court further determined that the lack of judicial review of the forced and secret production of information required by the NSL violated the Fourth Amendment. 176 In Doe, plaintiff John Doe is an Internet access firm that received an NSL. 177 Prior to receiving the NSL, Doe received a phone call from an FBI agent informing Doe that he would be receiving the NSL. 178 The NSL Doe received informed him that he was prohibited "from disclosing to any person that the FBI has sought or obtained access to information or records under these provisions," and Doe was instructed to provide the responsive records personally. 179 Neither the FBI agent on the phone nor the text of the actual NSL implied any right to consult counsel or any procedure for challenging the NSL. 180 After an additional conversation with the agent, however, Doe decided to consult ACLU counsel. 181 The district court in Doe compared the procedures set forth in section 2709 (section 505 of the Act) with the procedures for grand jury subpoenas and recognized some similarities in terms of the lack of involvement of any court prior to issuance of either an NSL or grand jury subpoena. 182 The court was concerned, however, by a few key differences: the ability of the recipient of a grand jury subpoena to enter the district courts to have the subpoena quashed or modified and the fact that secrecy in connection with grand jury subpoenas is generally provided only if the government can show a compelling need for such secrecy. 183 According to the court, the NSL provision improperly imposed an automatic requirement of complete secrecy and provided no means to challenge the NSL. This case highlighted a provision in need of additional clarification, and this topic was one of several key discussions in the process of reauthorization of the sunsetted provisions of the Act.

ill. REAUTHORIZATION As part of the negotiation process in the drafting and ultimate passage of the

173. See, e.g., Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N. Y. 2004); see also Doe v. Ashcroft, 386 F. Supp. 2d 66 (D. Conn. 2005). 174. See Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004). 175. See id. at 506. 176. See id. at 524. 177. See id. at 475. 178. See id. at 478. 179. See id. at 479. Though the government argued that the statute implicitly permitted consultation with an attorney' and judicial review, those provisions were not viewed by the court to be adequately provided for, particularly in light of the instructions that accompanied the letter, which strongly indicated no such abilities. /d. at 494. 180. See id. 181. See id. 182. See id. at 485-86. 183. See id. at 486. XXX 35 GEO. L.J. ANN. REv. CRIM. PRoc. (2006)

PATRIOT Act, a number of the provisions viewed as most expansive or most significant were scheduled to sunset on December 31, 2005. 184 Unable to reach agreement on the expiring provisions by December 31, Congress passed, and Presi­ dent Bush signed on December 30, 2005, an extension of the Act until February 3, 2006. 185 Additional legislation was then signed to extend the Act's provisions until March 10, 2006. 186 Ultimately, on March 9, 2006, President Bush signed the legisla­ tion reauthorizing these provisions. This article has discussed many of the sunsetting provisions-sections 203, 206, and 215 187-and additional provisions not set to expire, including the NSL provi­ sions, have also become topics for debate and amendment during the reauthorization process. 188 The reauthorization process provided a chance to fine tune, clarify, and improve upon the original provisions of the Act. It also provided an opportunity for debate about what tools law enforcement and intelligence officials need in the war on terror. Ultimately, both the House and Senate passed legislation reauthorizing all of the sunsetting provisions of the PATRIOT Act, though the bills were distinguishable in connection with some key provisions. 189 The most obvious differences between these bills related to sections 206 and 215. Additionally, both bills proposed changes to section 213 and 505, though those provisions of the Act were not subject to the sunset provision. 190 One of the greatest divergences between the originally passed House and Senate bills existed on the issues of tangible items orders under PATRIOT Act section 215 and the use of national security letters. 191 The Senate bill expressly required a relevancy standard be met prior to approval of applications under section 215: a court would be required to find that the items sought in the application are relevant to the activities of a foreign power, an agent of a foreign power, or one connected with or known to a suspected agent of a foreign power. 192 The House bill would have predicated issuance of such an order upon a finding merely that the statute's require-

184. PATRIOT Act, supra note 1, § 224(a). 185. S. 2167, Pub. L. 109-160, 109th Cong. (2005). 186. H.R. 4659, Pub. L. 109-170, 109th Cong. (2006). 187. Other sections sunsetting include section 201 (adding offenses to those for which electronic surveillance is appropriate), 202 (adding computer fraud and abuse to the list of offenses for which authorization for interception of wire, oral or electronic communications is appropriate under Title II of the ECPA}, section 204 (clarifying that the general pen register/trap and trace device proscriptions do not bar foreign intelligence gathering involving foreign communications systems), section 207 (establishing presumptive time periods for FISC orders and providing for extensions), section 209 (regarding provi­ sions for warrants for voice mail messages), section 212 (generally prohibiting disclosure by computer service providers of records and other information about subscribers and customers but providing an exception in cases of emergency where the provider reasonably believes immediate danger of death or serious physical injury may be involved), section 214 (pen register/trap and trace devices), section 217 (regarding computer trespasser provisions), section 220 (providing for the nationwide service of search warrants for electronic surveillance), section 223 (creates a cause of action against U.S. officials who willfully violate provisions of Title III or FISA), and section 225 (providing immunity for those third parties who assist with the execution of FISA search or surveillance orders). 188. Section 213's provision for delayed notice search warrants is also not to sunset but has garnered its own controversies leading to proposed changes during the reauthorization process. 189. USA PATRIOT Improvement and Reauthorization Act of 2005, S. 1389, 109th Cong. (as passed by Senate, July 29, 2005) [hereinafter S. 1389]; USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005, H.R. 3199, I 09th Cong. (as passed by House, July 21, 2005) [hereinafter H.R. 3199]. 190. SeeS. 1389, supra note 189, §§ 6, 9; H.R. 3199, supra note 189, §§ 114, 121, 116-118. 191. The same difference exists in connection with this section in terms of a new sunset as exists in connection with section 206, with the Senate bill setting a December 31, 2009, deadline, while the House extended the deadline until December 31,2015. SeeS. 1389, supra note 189, § 10; H.R. 3199, supra note 189, § 102. 192. SeeS. 1389, supra note 189, § 8(a). 35 GEO. L.J. ANN. REv. CRIM. PRoc. (2006) xxxi ments are met, without any separate foreign power relevance determination. 193 But both the Senate and House bills did provide additional protection for libra.rY and book store records, requiring high-level Justice Department approval before such records could be sought. 194 The Senate bill also would have provided the same protection to firearm sales records and medical records. 195 And though the details differed, both bills clearly included an exception to the confidentiality require­ ment--or "gag order"-such that recipients of section 215 orders would be permitted to consult with counsel. 196 Furthermore, both bills created a procedure for judicial review by recipients of FISA orders under this section. 197 As a result of the court's decision in Doe v. Ashcroft198 declaring the NSL provision unconstitutional for its complete confidentiality requirement and lack of judicial review process, both the House and Senate also sought similar revisions to section 505 to cure those constitu­ tional infirmities. Although the House and Senate bills focused on many of the same issues, substantive differences did exist. Thus, having passed two different reauthorization bills, Congress formed a conference committee to reconcile the legislation. 199 A conference bill was reported and recommended by the committee members from both chambers on December 8, 2005. That bill, among other things, attempted to reconcile the differences discussed above. Under this conference bill, sections 206 and 215 were scheduled to sunset on December 31, 2009, while all other FISA amendments and the NSL provisions effectuated by the Act would become permanent. 200 The conference bill also required a higher level of Department of Justice approval prior to filing any application under section 215 for types of sensitive records like those identified in the Senate bill, including certain library, book store, firearm sale, medical, tax return, and educational records,201 and included a clear exception to the original version of the confidentiality 202 provision to permit disclosure of the 215 order to the recipient's counsel. · The conference bill, however, proposed adoption of the House version of the standard to be used in granting applications under section 215. Contrary to the Senate version, which, as mentioned, would have required a showing of relevance between the items sought and the activities of a foreign power or its agent, the conference bill required only a showing of relevance to an investigation to protect against interna­ tional terrorism or clandestine activities.203 But unlike the Senate version, the confer­ ence bill would have required the Attorney General to establish minimization procedures specifically in connection with information obtained under this section. 204 Further, clear judicial review was permitted; recipients could challenge the orders by going before the FISC, with the ability to appeal to the United States Supreme Court.205

193. See H.R. 3199, supra note 189, §§ 107(a), 107(c). 194. SeeS. 1389, supra note 189, § 8(c); H.R. 3199, supra note 189, § 107(e). The Senate bill requires . approval of s.uch applications by the Director or Deputy Director of the FBI, while the House provides for approval only from the FBI Director. 195. SeeS. 1389, supra note 189, § 8(c). 196. SeeS. 1389, supra note 189, § 8(d); H.R. 3199, supra note 189, § 107(c). 197. SeeS. 1389, supra note 189, § 8(e); H.R. 3199, supra note 189, § 107(d). 198. See 334 F. Supp. 2d 471 (S.D.N.Y. 2004). 199. See H. REP. No. 109-333 (2005) (Conf. Rep.). 200. See id. § 102(b). 201. See id. § 106(a). 202. See id. § 106(e). 203. See id. § 106(b). 204. See id. § 106(g). 205. See id. § 106(f). xxxii 35 GEO. L.J. ANN. REv. CRIM. PRoc. (2006)

As part of the conference reported bill, amendments were made in connection with NSLs to correct many of the potential constitutional infirmities that were present before the Act. For example, an exception to the confidentiality provision was created for obtaining legal advice, 206 and a procedure was established not merely for judicial review, but also for the lifting of nondisclosure orders, in whole or in part. 207 Indeed, the conference legislation provided for both judicial enforcement actions by the government in connection with NSLs and a mechanism for recipients to challenge NSLs, to have them quashed or modified to the extent they are unreasonable, oppressive, or otherwise unlawful.208 These changes were a direct response to the court's decision in Doe v. Ashcrojt.Z09 The conference bill was passed by the House of Representatives on December 14, 2005, by a vote of 251-174?10 Due to continuing disagreement in the Senate, however, the conference bill was only passed by that chamber after passage of a supplemental piece of legislation that added to the safeguards to be put in place by the conference report. Thus, the Senate first passed this add-on legislation211 and only then passed the bill reported out by the conference comrnittee.Z 12 The focus of the debate that led to the additional legislation was most succinctly set forth in a letter signed by nine Senators expressing their disagreement with the conference reported legislation.Z 13 Core concerns boiled down to disagreement about the relevance standard to be applied to section 215 orders; the ability to challenge not only the 215 order itself, but also the confidentiality required in connection with such orders; the presumptive notice period in cases of delayed notice search warrants, a topic not discussed here; and the lack of any sunset for the NSL provisions.214 Thus, additional and slightly modified civil liberties protections-above and be­ yond those reported in the formal compromise bill that came out of the conference committee-are now provided in connection with section 215 and NSLs. The supple­ mental legislation expressly provides for judicial review of nondisclosure orders issued in connection with orders for tangible items under the original Act's section 215.215 A challenge to nondisclosure can be made one year after receipt of the order, and the FISC may overturn a nondisclosure order if it determines that no reason exists to believe that disclosure poses a danger to national security, disclosure will not interfere with ongoing criminal, counterterrorism, or counterintelligence investiga­ tions, or with diplomatic relations, and disclosure does not pose a danger to the safety of any person.Z 16 In making this determination, a certification by the Attorney General or another specified high-ranking Department of Justice official that disclo-

206. See id. § 116. 207. See id. § 116 (providing for the petitioning once a year for the lifting or modification of any nondisclosure order). 208. See id. § 116. 209. 334 F.Supp. 2d 471 (S.D.N.Y. 2004). 210. See Roll Call No. 627 (Dec. 14, 2005). 211. USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, Pub. L. No. 109-178, 120 Stat. 278 (2006) (passed by the Senate on March I, 2006, by a vote of 95-4, reported at Record Vote No. 25, and passed by the House on March 7, 2006, by a vote of 280-138, reported at Roll Call No. 20) [hereinafter PATRIOT Act Additional Reauthorization]. 212. USA PATRIOT Improvement and Reauthorization Act of 2006, Pub. L. No. 109-177, 120 Stat. 192 (2006) (passed by the Senate on March 2, 2006, by a vote of 89-10 reported at Record Vote No. 19). 213. Letter from Senators Larry E. Craig, Richard J. Durbin, John Sununu, Russell D. Feingold, Lisa Murkowski, Ken Salazar, Chuck Hagel, John F. Kerry, and Barack Obama (Dec. 14, 2005), available at http://feingold.senate.gov /Patriot_Act_Dear_Colleague 121405. pdf. 214. See id. at 1-3. 215. PATRIOT Act Additional Reauthorization, supra note 211, § 3. 216. /d. 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006) XXXlll sure does endanger national security or may interfere with diplomatic relations is to be deemed conclusive on that point unless it is shown that such certification was made in bad faith?17 The add-on legislation also altered the treatment of NSLs from that established by the conference report. Although the conference legislation made it clear that an NSL recipient could consult counsel, it also required anyone disclosing receipt of the NSL to counsel to inform the FBI of the identity of the attorney to whom disclosure was made. That requirement was eliminated by the supplementallegislation?18 Moreover, this legislative enactment clarifies that libraries, when acting as traditional libraries in providing access to the Internet, books, journals, magazines, newspapers, and the like, are not subject to NSLs issued under section 2709, the NSL provision that was amended by section 505 of the original Act.219 As debate continues about the PATRIOT Act even after its reauthorization, which it surely will, both its successes and the opportunity for sincere improvements will continue to come under consideration. This ongoing debate is guaranteed by the newly established sunset for many of the provisions that remain at issue. Many questions remain, and new questions may develop. Can the rise in FISA orders and the enhanced danger that the provisions of FISA might be used to circumvent the Fourth Amendment's governance of traditional criminal investigations be addressed through additional procedural safeguards? Will additional opportunities for judicial review expose the nation's counterterrorism strategies to our enemies? Is the sharing of information actually occurring? No doubt these and other questions will linger as the country continues to combat a new and nontraditional enemy.

217. /d. 218. /d. § 4(b). 219. ld. § 5.