The USA PATRIOT Act And Beyondby Reporters' Committee for Freedom of The Press
Homefront Confidential (website)
3/14/2003 The USA PATRIOT Act's impact on newsgathering is still largely unknown a year
and a half after Congress rushed to enact the law.
Journalists should be concerned about certain provisions of the law, which grant
broad new powers to government agents to investigate terrorism.
Congress enacted the law with little debate just six weeks after the terrorist
attacks on the World Trade Center and the Pentagon. President Bush signed the USA
PATRIOT Act into law on Oct. 26, 2001.
The awkwardly named law—the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001—expands
the FBI's ability to obtain records through secret court orders. The law also gives
government investigators greater authority to track e-mail and telephone communications
and to eavesdrop on those conversations.
Although aimed at trapping terrorists, those provisions of the law could ensnare
journalists and restrict their ability to report on the war on terrorism. Journalists
should be aware of this law and future amendments and proposals that attempt to
expand government surveillance powers and increase secrecy surrounding the government's
efforts to combat terrorism.
Secret court orders
The USA PATRIOT Act amended certain provisions of Foreign Intelligence Surveillance
Act (FISA), thereby expanding the government's ability to conduct surveillance of
foreign powers and agents of foreign powers in the United States.
Enacted in 1978, FISA set forth procedures governing foreign intelligence investigations
and established a secret court that approves or denies the use of electronic surveillance
by the government for foreign intelligence purposes.
The Foreign Intelligence Surveillance Court's 11 judges, who come from different
federal circuits, meet twice a month in Washington, D.C., with three judges always
available in Washington. The USA PATRIOT Act increased the number of FISA judges
to 11 from the previous seven. If the court denies an application for surveillance,
the government may appeal to the Foreign Intelligence Surveillance Court of Review,
a panel of three federal judges appointed by Chief Justice William Rehnquist.
Secrecy permeates the process of obtaining the court order. The FISA court that
issues the surveillance order meets and decides its cases in secret. As a result,
the public is left in the dark about the number of FISA search warrants issued against
U.S. citizens, who are never informed of the surveillance and are not represented
before the court. Not only is the public uninformed, but Congress is kept in the
dark about how the FISA court interprets provisions of the USA PATRIOT Act drafted
by Congress. The FISA court is not required to reveal its legal opinions, thereby
establishing a secret body of case law unprecedented in American jurisprudence.
The court's secrecy remained intact from its inception in 1979 until now, when
a conflict between the court and the Justice Department was revealed to the Senate
Judiciary Committee in August 2002.
The conflict centered around interpretation of amendments made by the USA PATRIOT Act to FISA. Prior to the USA PATRIOT Act,
FISA surveillance orders were limited to investigations whose primary purpose was
gathering foreign intelligence information. FISA provisions required strict limits
on such power-sharing between criminal prosecutors and foreign intelligence investigators
because foreign intelligence investigations are not required to follow the same
strict constitutional safeguards as criminal prosecutions. For example, a FISA surveillance
order only requires probable cause to believe that the target of the electronic
surveillance is a foreign power or an agent of a foreign power; whereas, under the
Fourth Amendment, a criminal search warrant requires probable cause of criminal
activity.
In its May 2002 opinion, revealed to the Senate Judiciary Committee in August,
the FISA court rejected the Justice Department's argument that the USA PATRIOT Act
enables the government to obtain a surveillance order whose primary purpose is a
criminal investigation. The court scaled back the information-sharing regulations,
still allowing prosecutors to consult with intelligence investigators on how to
"preserve the option of a criminal prosecution" and to benefit from information
obtained during a FISA investigation, but not allowing them to steer those investigations
to further prosecutions. As a result, the Justice Department could not apply USA
PATRIOT Act provisions to FISA in such a way as to allow criminal prosecutors to
actually control or direct foreign intelligence investigations.
The government appealed the court's decision. In September 2002, the Court of
Review met for the first time in its history, reversing the FISA court's decision
and ruling in favor of the government. It found that the USA PATRIOT Act enables
the government to obtain a surveillance order from the FISA court where the primary
purpose is a criminal investigation as long as gathering foreign intelligence information
is also "a significant purpose" of the investigation. If "the government entertains
a realistic option of dealing with the [foreign] agent other than through criminal
prosecution, it satisfies the significant purpose test," the Court of Review wrote
in its opinion.
The Court of Review noted that FISA surveillance orders could not be authorized
against journalists who were not agents of foreign powers or, as the House of Representatives
explained in its report when it enacted FISA, "against an American reporter
merely because he gathers information for publication in a newspaper, even if the
information was classified by the Government. Nor would it be authorized against
a Government employee or former employee who reveals secrets to a reporter or in
a book for the purpose of informing the American people."
In February 2003, the American Civil Liberties Union and a number of other civil
liberties organizations asked the U.S. Supreme Court to review the decision. The
ACLU group, which had filed a friend-of-the-court brief before the Court of Review,
asked the Supreme Court to allow it to file the petition because no other party
is involved in the case and able to contest the government's surveillance request
or the FISA order.
"Traditionally, the warrant and probable cause requirements have served as important
safeguards of First Amendment interests by preventing the government from intruding
into an individual's protected sphere merely because of that individual's exercise
of First Amendment rights," the ACLU wrote in its petition.
Expanding the government's surveillance powers under the USA PATRIOT Act will
"chill" speech protected by the First Amendment, the ACLU argued. Such a chilling
effect could possibly restrict sources from speaking to reporters.
How do FISA and the USA PATRIOT Act affect journalists?
Under § 1861 of the USA PATRIOT Act, the FBI can seek an order requiring the
production of "any tangible thing"—which the law says includes books, records,
papers, documents and other items—from anyone for investigations involving foreign
intelligence or international terrorism. The person or business receiving the order
cannot tell anyone that the FBI sought or obtained the "tangible things."
For journalists, the big question is whether the provision for secret court orders
will allow a newsroom search for "any tangible thing" related to a terrorism investigation.
Could a government agent use the law to gain access to a reporter's notes and confidential
sources?
Theoretically, the USA PATRIOT Act allows a newsroom search. However, another
federal law, the Privacy Protection Act of 1980, spells out when newsroom searches
are forbidden and the limited exceptions in which they are allowed.
Nothing in the USA PATRIOT Act expressly preempts the Privacy Protection Act.
The Privacy Protection Act states that, "notwithstanding any other law," federal
and state officers and employees are prohibited from searching or seizing a journalist's
"work product" or "documentary materials" in the journalist's possession. A journalist's
work product includes notes and drafts of news stories. Documentary materials include
videotapes, audiotapes and computer disks.
Some limited exceptions under the Privacy Protection Act allow the government
to search for or seize certain types of national security information, child pornography, evidence that a journalist has committed a crime,
or documentary materials that must be immediately seized to prevent death or serious
bodily injury.
Documentary materials also may be seized if there is reason to believe that they
would be destroyed in the time it took government officers to seek a subpoena. Those
materials also can be seized if a court has ordered disclosure, the news organization
has refused and all other remedies have been exhausted.
The Privacy Protection Act gives journalists the right to sue the United States
or a state government, or federal and state employees, for damages for violating
the law. The law also allows journalists to recover attorneys fees and court costs.
While Congress was drafting the USA PATRIOT Act, the American Library Association
objected to the potential intrusion into its patrons' personal information, including
reading habits and the Web sites they viewed. The group described the law as a threat
to patrons' privacy and First Amendment rights. In response, the library association
posted guidelines on its Web page advising libraries to avoid creating and retaining
unnecessary records.
On Jan. 29, 2003, the library association passed a formal resolution objecting
to certain provisions of the USA PATRIOT Act and warned that "the activities of
library users, including their use of computers to browse the Web or access e-mail,
may be under government surveillance without their knowledge or consent."
Likewise, on Feb. 10, 2003, the American Bar Association adopted a formal resolution
that calls for congressional oversight of FISA investigations to ensure that the
government is complying with the constitution and limiting improper government intrusion.
No one knows exactly how often the USA PATRIOT Act has been used to obtain records,
although libraries already have received visits from FBI agents. Of the 1,020 public
libraries surveyed by the Library Research Center at the University of Illinois,
85 reported that they had been asked by federal or local law enforcement officers
for information about patrons related to September 11, The Associated Press reported
in June 2002.
The House Judiciary Committee, which oversees how the Justice Department enforces
the USA PATRIOT Act, asked the Justice Department for a more detailed accounting.
On June 13, 2002, committee chairman Rep. F. James Sensenbrenner Jr. (R-Wis.) and
ranking member Rep. John Conyers Jr. (D-Mich.) sent a list of 50 detailed questions
to Attorney General John Ashcroft.
Question 12 asked: "Has the law been used to obtain records from a public library,
bookstore or newspaper? If so, how many times?"
In a written response on July 26, 2002, Assistant Attorney General Daniel J.
Bryant conceded that newspapers were not exempt from the secret court orders.
"Such an order could conceivably be served on a public library, bookstore, or
newspaper, although it is unlikely that such entities maintain those types of records,"
Bryant wrote.
He declined to state the number of times the government has requested an order
or the number of times the FISA court has granted an order. That information is
classified, his letter said.
Senator Patrick Leahy (D-Vt.) again sought answers to this question and others
after an oversight hearing in July 2002. Of the 93 questions posed by Leahy, 37
remain unanswered.
This type of stonewalling and secrecy was cited in a February 2003 interim report
by Senators Leahy, Charles Grassley (R-Iowa), and Arlen Specter (R-Penn.) as "mak[ing]
exercise of our oversight responsibilities difficult."
In addition, the interim report found that the refusal of the Department of Justice
to disclose the legal opinions and operating rules of the FISA court "contributed
to the deficiencies that have hamstrung the implementation of the FISA." Even though
members of the Senate Judiciary Committee authored provisions in the USA PATRIOT
Act, they were unaware of how the Department of Justice was interpreting these provisions
before the FISA court.
In response to this secrecy, Senators Leahy, Grassley and Specter joined together
to introduce Senate Bill 436. The bill requires that the rules and procedures of
the FISA courts be shared with the U.S. Supreme Court and the Intelligence and Judiciary
committees of the Senate and House. In addition, the attorney general must submit
an annual public report detailing portions of the applications and opinions of the
FISA courts that contain significant legal interpretations of FISA or the Constitution.
"This type of disclosure . . . will prevent secret case law from developing which
interprets both FISA and the Constitution in ways unknown to Congress and the public,"
said Senator Leahy in a Feb. 25 statement made upon introduction of the bill.
The bill also requires annual reporting on the aggregate number of FISA wiretaps
and surveillance orders against Americans and requests for information from libraries.
According to Leahy: "This bill does not in any way diminish the government's
powers, but it does allow Congress and the public to monitor their use. We cannot
fight terrorism effectively or safely with the lights turned out and with little
or no accountability. It is time to harness the power of the sun to enable us to
better win this fight."
Electronic surveillance
As long as a reporter is not an "agent of a foreign power," the USA PATRIOT Act
does not make it easier for the government to wiretap a reporter's phone. As was
the case before the law passed, investigators still must have probable cause to
believe a person has committed a crime before they can bug that person's phone.
However, it is now easier for investigators to eavesdrop on a terrorism suspect's
telephone calls and e-mail communications with so-called "roving" wiretaps. Because
of that change, reporters may run a heightened risk of having their telephone or
e-mail conversations with sources intercepted by government agents if those sources
are deemed "agents of a foreign power."
Journalists should become familiar with the electronic surveillance features
of the new law because those provisions pose a potential threat to newsgathering.
Understanding the law requires a basic familiarity with the tools government
investigators use in conducting electronic surveillance: wiretaps, pen registers
and "trap and trace" devices. The following is an explanation of those procedures,
when they are used and how they changed under the USA PATRIOT Act.
What is a wiretap?
A wiretap allows government officials to intercept and listen to wire, oral and
electronic communications. The procedures for getting approval for a wiretap differ
depending on whether officials are seeking the wiretap for domestic law enforcement
purposes or whether foreign intelligence surveillance is involved.
If investigators are seeking the wiretap for domestic law enforcement, they must
show a court that there is probable cause to believe the target of the wiretap is
committing, has committed or is about to commit one of several specifically listed
crimes in the U.S. Code. (18 U.S.C. § 2518 (3) (a)).
The USA PATRIOT Act added several terrorism offenses to the list of crimes for
which a wiretap order could be granted. The added crimes are chemical weapons offenses,
use of weapons of mass destruction, violent acts of terrorism transcending national
borders, financial transactions with countries that support terrorism, and material
support of terrorists or terrorist organizations. (18 U.S.C. § 2516).
The procedures are less strict if the wiretap will involve foreign intelligence,
meaning information that relates to the ability of the United States to protect
against attacks, sabotage or clandestine intelligence activities by a foreign power
or an agent of a foreign power, or that relates to national defense, national security
or U.S. foreign affairs. (50 U.S.C. § 1801).
The presence of foreign intelligence information triggers procedures under the Foreign Intelligence Surveillance Act (FISA).
Unlike wiretapping conducted under domestic law enforcement procedures, FISA
allows electronic surveillance without a showing of probable cause of criminal activity.
Instead, FISA requires only a finding of probable cause that the target of the surveillance
is a foreign power or an agent of a foreign power. (50 U.S.C. § 1805).
If the target is a "United States person"—meaning a U.S. citizen, resident
alien or U.S. corporation—there must be probable cause to believe the person's
activities involve a crime, that the person knowingly engaged in sabotage or international
terrorism, or that the person entered the United States under a false identity on
behalf of a foreign power while already in this country. (50 U.S.C. § 1801 (b)(2)).
Unlike ordinary wiretaps, a secret court grants FISA wiretaps. (50 U.S.C. § 1803).
This is the same secret court that issues the orders that can force libraries, bookstores,
businesses—and possibly newspapers—to produce "any tangible thing" for terrorism
investigations.
Also unlike ordinary wiretaps, in which authorities must report what they heard
on the wiretap to the court that allowed the surveillance, FISA wiretaps do not
require government authorities to report their findings to the secret court.
What is a roving wiretap?
The USA PATRIOT Act expanded the reach of FISA surveillance by allowing "roving"
wiretaps.
Previously, wiretaps were issued for a particular phone or specific communication
device, such as a computer. The USA PATRIOT Act allows authorities acting under
a FISA order to intercept phone conversations and e-mail communications on any phone
or computer that a target of surveillance uses.
This expanded power applies only to foreign intelligence surveillance, not ordinary
law enforcement activities.
Previously, every time a target of surveillance switched phones or e-mail accounts,
government investigators had to return to the secret FISA court for a new order
to change the name of the third party whose help was needed to install the wiretap,
the Congressional Research Service explains in its analysis of the USA PATRIOT Act.
Now, the secret court can issue a generic order requiring anyone to help investigators
tap any phone, computer or other communication device the suspect might use.
What are pen registers and trap-and-trace devices?
A pen register tracks outgoing calls by identifying the numbers dialed from a
particular phone.
A trap-and-trace device tracks incoming calls, by phone number, made to a particular
phone.
Probable cause of criminal activity is not required for law enforcement to obtain
a court order to install the devices. Instead, a lower standard is applied. For
domestic law enforcement, the government official seeking to install a pen register
or trap-and-trace device must certify to a court that the information likely to
be obtained is relevant to an ongoing criminal investigation. (18 U.S.C. § 3122
(b)(2)) The law does not require the target of the surveillance to be a suspect
in the investigation.
Under FISA, the agency seeking permission to install the devices must certify
that they are likely to reveal information relevant to a foreign surveillance investigation.
(50 U.S.C. § 1842(c) (2)).
The USA PATRIOT Act allows the devices to be installed on cell phones, Internet
accounts and e-mail to gather dialing, routing, addressing and signaling information—but not content. For example, a government investigator with a court order could
install the device on a person's e-mail account and get a list of all the e-mail
addresses flowing in and out of the account, but the investigator could not read
the contents of the e-mail.
What does this mean for journalists?
Lee Tien, senior staff attorney at the Electronic Frontier Foundation, described
this scenario:
A reporter contacts a foreign student or a member of a foreign political organization
who would meet the definition of "agent of a foreign power" under the Foreign Intelligence
Surveillance Act.
Unknown to the reporter, the source is the subject of a roving wiretap authorized
under the USA PATRIOT Act.
Because the roving wiretap gives government officials the power to eavesdrop
on the suspect's phone and e-mail communications, the government is hearing and
recording the reporter's conversation with the source.
As was the case before the USA PATRIOT Act passed, government investigators could
not wiretap the reporter's phones and e-mail accounts unless they had probable cause
that the reporter had committed or was about to commit a crime.
But by contacting someone who is the target of foreign intelligence surveillance,
the reporter might be vulnerable to having a pen register or trap-and-trace device
placed on the reporter's phone and e-mail accounts. Remember, the government agent
has to certify to a secret court only that the information likely to be obtained
would be relevant to an ongoing foreign intelligence investigation. Once approved,
the devices give investigators a list of every e-mail address and phone number the reporter is contacting,
although not the contents of those communications.
And because all of this goes on in secret, the reporter may never know that his
or her communications have been under government surveillance.
How likely is this to happen?
No one knows. In their June letter to Ashcroft seeking information on how the
Justice Department was implementing the USA PATRIOT Act, Reps. Sensenbrenner and
Conyers of the House Judiciary Committee asked how many times the department had
obtained permission for roving wiretaps, pen registers and trap-and-trace devices.
The congressmen did not ask how many times journalists had been caught up in such
investigations.
Bryant, the assistant attorney general who responded to the letter, did not provide
the information to Sensenbrenner and Conyers. Instead, he wrote them that the information
on roving wiretaps was classified; he did not respond at all to the question on
pen registers and trap-and-trace devices but indicated that a response would come
later.
Reporters do have a measure of protection in the Attorney General's Guidelines
for Subpoenaing Members of the News Media, which have been in place since the Nixon
Administration. Those guidelines, which do not carry the force of law, require that
news media subpoenas identify particular relevant information that cannot be obtained
any other way. The guidelines also call for negotiations between the Justice Department
and the reporter when the agency seeks a subpoena against the news media. (28 C.F.R.
§ 50.10).
The Bush administration has shown that it will ignore those guidelines if it
believes the reporter might have information that could help a criminal investigation.
The Justice Department violated the guidelines in 2001 when it subpoenaed the
telephone records of Associated Press reporter John Solomon. The agency was trying
to discover the reporter's confidential source for information about a now-closed
investigation of Sen. Robert Torricelli (D-N.J.).
Solomon did not learn until late August 2001 about the subpoena, which covered
his phone records from May 2 to 7, 2001. The Justice Department did not negotiate
with Solomon or his employer, did not say why the reporter's phone records were
essential to a criminal investigation, and did not explain why the information could
not be obtained any other way.
Also, the Justice Department ignored a provision in the guidelines that allows
no more than a 90-day delay in notifying a reporter about a subpoena. The department missed that
deadline in the Solomon case.
The Solomon subpoena was issued before September 11 and before Congress enacted
the USA PATRIOT Act. But it could be a bellwether event in gauging the willingness
of the Bush administration to use journalists as a tool of surveillance.
Other information-gathering programs
The Bush Administration, and particularly Attorney General John Ashcroft, has
placed a priority on collecting terrorism-related information, seemingly at any
cost. Civil liberties groups have expressed outrage over proposed projects like
Total Information Awareness and the Terrorist Threat Integration Center that aim
to amass large volumes of information about individuals.
Some of these programs may serve as means for the government to get at journalists'
work product by using these secretive, invasive tactics.
The Defense Department's Total Information Awareness program is a data-mining
effort developed by John Poindexter, the former White House official who oversaw
President Reagan's illegal Iran-Contra operation. As originally intended, TIA would
use computer technology to collect everyday information about citizens in an attempt
to locate terrorists.
According to a Defense Department Information Paper on the project, "for this
research, the TIA project will use only data that is legally available and obtainable
by the U.S. Government."
But other groups that have objected to the TIA project say that "according to
DARPA's own documents, TIA will collect and mine vast amounts of information on
the American public, including telephone records, bank records, medical records,
and educational and travel data. TIA would expand domestic intelligence activities
to include the analysis of innocent people's personal information—credit card
transactions, hotel reservations, or even prescription receipts."
Such mass harnessing of information—which would be the most extensive computer
surveillance program in U.S. history—would likely reach the records of journalists,
who may not even be aware that their source information was being compromised.
In February 2003, Congress held up funding for the project, citing privacy concerns.
House leaders made clear that if the Pentagon plans to go forward with TIA, the
project will be under close congressional scrutiny.
A new initiative, the Terrorist Threat Integration Center, appears to be Bush's
response to Congress's rejection of TIA. Announced in the State of the Union Address
in January 2003, the TTIC will combine elements of the Central Intelligence Agency, the Federal Bureau
of Investigation, the Department of Homeland Security and the Department of Defense,
to link data from those bodies. The new center will "merge and analyze terrorist
information collected domestically and abroad in order to form the most comprehensive
possible threat picture," according to the White House's Web site.
The administration promises that administration of TTIC will be consistent with
constitutional and other legal protections. Nevertheless, critics of TIA have already
voiced concern about the TTIC, saying it, like TIA, has the potential to invade
individuals' private lives.
One spy program that appears to have been derailed by opponents is Bush's proposed
Terrorism Information and Prevention System, or "Operation TIPS." TIPS was a part
of the president's idea for a Citizen Corps, a project the State Department said
would "engage ordinary American citizens in specific homeland security efforts in
their own communities."
As proposed, TIPS would ask millions of transportation workers, postal workers
and public utility employees to identify and report suspicious activities linked
to terrorism and crime. By asking citizens to spy on one another, TIPS directly
threatened newsgathering and the independence of the press.
Civil liberties groups attacked the idea as a plan for creating a nation of spies.
Lawmakers had problems with the proposal, too. Sen. Leahy, then chairman of the
Senate Judiciary Committee, compared TIPS to an FBI informant program under J. Edgar
Hoover in the 1960s, when FBI agents hired neighbors of suspected political protestors
to spy on them. Then-majority leader Dick Armey (R-Texas) also opposed the program.
The Bush Administration first modified the TIPS proposal and then was forced
to drop it entirely. Section 880 of the Homeland Security Act, passed in November
2002, reads: "Any and all activities of the Federal Government to implement the
proposed component program of the Citizen Corps known as Operation TIPS . . . are
hereby prohibited."
Civil libertarians and press advocates expect more battles over worrisome spy
legislation that is currently in the pipeline.
Secret draft of "PATRIOT II" revealed
In February 2003, The Center for Public Integrity revealed that the Department
of Justice is considering a new comprehensive legislative proposal, the Domestic
Security Enhancement Act of 2003, dubbed "PATRIOT II," that would provide the government
with even greater intelligence-gathering powers and limit public access to information.
One of the most controversial provisions of the draft legislative proposal would
lower the standard for obtaining FISA surveillance orders by allowing the government
to obtain such orders without evidence that the targeted party has connections to
a foreign power. Another would permit government intelligence surveillance without
a court order 15 days after an attack on the United States or formal declaration
of war by Congress.
It also expands the definition of terrorism to possibly include political protesters,
prohibits disclosure of information on detainees being held and investigated by
the government on suspected terrorism activity, and prohibits disclosure of "worst
case scenario" reports submitted to the Environmental Protection Agency by private
companies that use potentially dangerous chemicals.
PATRIOT II also would provide government access to credit reports without the
knowledge or consent of the targeted party and without judicial scrutiny, authorizes
a DNA database on suspected terrorists or those who associate or support suspected
terrorist groups, requires those suspected of terrorism to be held without bail
prior to trial, and authorizes expatriation of any American citizen "if, with the intent
to relinquish his nationality, he becomes a member of, or provides material support
to, a group that the United States has designated as a `terrorist organization.'"
Civil liberties groups and First Amendment advocates have expressed their concern
and outrage over the Justice Department's expansion of the USA PATRIOT Act. In a
memo summarizing the effects of the draft legislation, the American Society of Newspaper
Editors warned that "If Patriot Act II passes, the government would be able to claim
that journalists were passing information on to a foreign person or organization
to justify an electronic wiretap of a newsroom." In addition, the government may
be able to conduct surveillance without a court order of spoken communications in
foreign news bureaus if the communications occur on property "under the open and
exclusive control of a foreign power."
Though this draft legislation has not been presented to Congress, it provides
insight on where the future of the USA PATRIOT Act may lead—a road that may pose
grave danger to the First Amendment rights of the press. Close |