Summary  Why Section 206 Should be Modified  Terrorism is Not Just a Crime  Response  The Last Word?


Section 206.
Roving Surveillance Authority under FISA

A Summary by Mary DeRosa

Section 206 expands the authority of the Foreign Intelligence Surveillance Court (FISC) by allowing it to order "roving" or multi-point surveillance. Previously, FISA required a separate FISC authorization to tap each device a target used. Technically, the Court's order would direct a specific carrier or individual to assist in the surveillance. As a practical matter this required separate application to the FISC each time a target switched from pay phone to cell phone, email to Blackberry, etcetera. Now, the Court may order surveillance focused on the target, rather than the device he or she is using when "the actions of the target of the application may have the effect of thwarting the identification" of a specific device. This new order does not specify the person who is directed to assist; the government may serve the generic order on individuals or carriers that it identifies.

Section 206 modernizes FISA wiretap authority and brings it closer in line with the criminal wiretap laws, which have permitted roving wiretaps since 1986. The FISA roving authority differs from the criminal wiretap laws, however, in that it does not contain a requirement that the government "ascertain" where the targeted communication will take place before intercepting communications. The criminal wiretap law, 18 U.S.C. section 2518(12), states: "An interception of a communication under [a roving surveillance] order . . . shall not begin until the place where the communication is to be intercepted is ascertained by the person implementing the interception order."

Also, under FISA, the government need not always identify a target to obtain a warrant. FISA section 105(c)(1)(A), requires that an order specify "the identity, if known, or a description of the target of the electronic surveillance." Therefore, with the new roving surveillance authority, the government may obtain an order to conduct surveillance that specifies neither a named target nor a specific device to tap, although the order must provide a description of the target if a name is not known.

Why Section 206 Should be Modified
by James X. Dempsey

Section 206 of the USA PATRIOT Act authorized "roving' wiretaps under the Foreign Intelligence Surveillance Act (FISA). Under this provision, the FBI in an intelligence investigation can obtain a court order to intercept an individual's communications without specifying the particular phone line or computer account to which the interception will apply. Thus, if a suspected spy or terrorist is moving from safehouse to safehouse, or is using public access computers, or is changing cell phones frequently, the FBI can continue to intercept the individual's communications without having to return to court for a new order covering each new phone line or computer.

It makes perfect sense that the FBI should have roving tap authority in intelligence investigations of terrorists. In fact, the FBI had been given roving tap authority in criminal investigations of terrorists in 1986, and there was no good reason why similar authority had not been granted at the same time for intelligence investigations under FISA. During the PATRIOT Act debate, the Justice Department sometimes justified Section 206 by claiming that it needed the same authority to investigate dangerous terrorists that it already had for ordinary criminals, but in reality DOJ already did have -- prior to the PATRIOT Act -- roving tap authority for terrorists plotting attacks or raising money and being investigated under the criminal law.

So, as with so many provisions of the PATRIOT Act, the concern with Section 206 is not with the authority itself. Rather, the issue is the lack of adequate checks and balances. Roving taps pose obvious risks. Constitutionally, they are suspect, since they depart from the Fourth Amendment's explicit requirement that all warrants must "particularly describ[e] the place to be searched.' Practically, they pose the risk of intercepting the communications of innocent persons, risks that are separate from those addressed by the minimization requirement of the wiretap laws. Congress recognized when it first created the roving tap authority for criminal cases that it needed to add extra procedural protections to overcome the constitutional problems and to guard against the interception of the conversations of innocent people.

More . . .

Terrorism is not just a crime
by Paul Rosenzweig

Shortly after the Patriot Act was passed, opponents of the Act wrote of section 206: "These wiretaps pose a greater challenge to privacy because they are authorized secretly without a showing of probable cause of crime... This Section represents a broad expansion of power without building in a necessary privacy protection.' Thus was painted an apocalyptic picture of Big Brother on steroids—a security apparatus that can listen to "anyone at anytime.'

Fortunately, the discussion of section 206 that we are engaged in here is a far more measured and thoughtful one of nuance. We are agreed, as I understand it, that the extension, generally, of roving wiretap authority to intelligence investigations is wise, and our disagreements, such as they are, exist at the margins.

It is useful, before addressing those disagreements, to recall the genesis of the roving wiretap rules and the fundamental reasons why they were extended to intelligence investigations. The Fourth Amendment requires that search warrants specify with particularity the place to be searched. This is intended to prevent the accidental or abusive search of an innocent person with, for example, a warrant obtained to search the home of another. As originally applied to electronic surveillance, the particularity requirement meant that law enforcement officers had to specify the particular phone they were intercepting.

More . . .

James X. Dempsey Responds

Courts have upheld the constitutionality of roving taps in the criminal context precisely because those roving taps have the guiding standards that are missing from Section 206.

The Constitution requires all search warrants (a wiretap order is basically a search warrant) to "particularly describe the place to be searched.' Recognizing the crafty mobility of terrorists and other criminals, courts have held that this requirement can be satisfied by describing with particularity either the place (that is, the phone number or Internet account) to be monitored or the person to be monitored. The problem with Section 206 of the PATRIOT Act, as modified by the 2002 intelligence authorization act, is that it allows the issuing of roving tap orders without describing either the place or the person. While this leaves roving tap authority for national security cases on shaky ground, it can be clarified without tying the hands of intelligence agents.

The prior essay, by arguing that criminal standards are inapplicable to terrorism investigations, confuses the principles applicable at the trial stage of a criminal case with the much looser rules applicable at the investigative stage. In criminal and intelligence investigations alike, the law allows the government to cast a very broad net. Proponents of fixing the PATRIOT Act's surveillance provisions are not proposing standards suited to criminal trials. We are saying that bedrock constitutional principles must be followed in both criminal and intelligence investigations, and the particularity requirement is one such bedrock.

Another important protection is the so-called ascertainment requirement. The purpose of roving taps is to follow the bad guy, so unless the bad guy is being followed, the roving tap cannot and should not be activated.

The prior essay presents a false choice between fighting terrorism, on the one hand, and preserving the civil liberties of innocent people on the other. True, we have checks and balances in part to protect the innocent. But we impose limits on government agents also in order to focus their activities and make them more effective. The ascertainment requirement serves to focus government surveillance resources—it ensures that the FBI is not going up on a surveillance without reason to believe that the targeted person is using a particular phone or computer. In this way, the ascertainment requirement aids the fight against terrorism.

The prior essay does not really explain why ascertainment would be burdensome. If an officer is required to end surveillance after determining that the wiretap is intercepting the communication of innocent persons, it hardly seems onerous to require the officer to determine that the target is using the communication device before activating the wiretap in the first instance.

Without additional safeguards, Section 206 roving tap orders are little different from the "general warrants' that the Fourth Amendment prohibits.

Paul Rosenzweig The Last Word?

There is no false choice between preserving civil liberty and fighting terrorism. To the contrary, the right answer is to seek to maximize both values to the extent it is possible. In that regard, the ascertainment provision championed by the competing essay is one that misses the mark.

First, the ascertainment requirement in criminal law (18 USC § 2518(12)) applies only to "oral communications' (i.e. those revealed by a hidden microphone) and does not apply to the interception of "wire' or "electronic' communications, like the telephonic conversations subject to interception under section 206. Thus, the ascertainment requirement advanced as a response to the "problem' of roving wiretaps takes a rule used in criminal cases only for oral conversations (like those of Mafia members in an eating club) and applies it to telephonic and electronic communications. But this means that if the ascertainment requirement were adopted it would be something totally new to electronic interceptions and actually make it more difficult to intercept the telephonic communications of terrorists than of drug dealers—surely not the ideal answer.

Of equal importance, the companion essay does little to demonstrate the necessity of the ascertainment requirement in practical terms. Relying on the robust minimization requirements that continue to exist, the essay posits that ascertainment prior to use is just as easy as minimization once use begins.

But the reality is far different—minimization is based upon knowledge of ongoing conversations, while ascertainment is based upon suppositions regarding future events. It is absolutely predictable that the uncertainty of ascertainment will cause hesitancy in the initiation of an interception. And through the gap created by that hesitancy will flow terrorist communi-cations. Thus, given the probable cause requirements for a section 206 warrant and the minimization protections, the benefits of the ascertainment rule are modest at best, while the costs are likely to be quite real.