The USA PATRIOT Act was passed by the United States Congress in 2001 as a response to the September 11, 2001 attacks. It has ten titles, each containing numerous sections. Title II: Enhanced Surveillance Procedures granted increased powers of surveillance to various government agencies and bodies. This title has 25 sections, with one of the sections (section 224) containing a sunset clause which sets an expiration date, December 31, 2005, for most of the title's provisions. This was extended twice: on December 22, 2005 the sunset clause expiration date was extended to February 3, 2006 and on February 2 of the same year it was again extended, this time to March 10. Title II contains many of the most contentious provisions of the act. Supporters of the Patriot Act claim that these provisions are necessary in fighting the war on terrorism, while its detractors argue that many of the sections of Title II infringe upon Constitutionally protected individual and civil rights. The sections of Title II amend the Foreign Intelligence Surveillance Act of 1978 and its provisions in 18 U.S.C., dealing with "Crimes and Criminal Procedure". It also amends the Electronic Communications Privacy Act of 1986. In general, the Title expands federal agencies' powers in intercepting, sharing, and using private telecommunications, especially electronic communications, along with a focus on criminal investigations by updating the rules that govern computer crime investigations. It also sets out procedures and limitations for individuals who feel their rights have been violated to seek redress, including against the United States government. However, it also includes a section that deals with trade sanctions against countries whose government supports terrorism, which is not directly related to surveillance issues.
Overview
Title II covers all aspects of the surveillance of suspected terrorists, those suspected of engaging in computer fraud or abuse, and agents of a foreign power who are engaged in clandestine activities (in other words, spying). In particular, the title allows government agencies to gather "foreign intelligence information" from both US and non-US citizens, which is defined in section 203 of the title. Section 218 changed the requirements to obtain a FISA surveillance to include that a "significant purpose'' of the surveillance is to "obtain foreign intelligence information" where formerly it was required to be "the primary purpose." The change in definition was meant to remove a legal "wall" between criminal investigations and surveillance for the purposes of gathering foreign intelligence, which hampered investigations when criminal and foreign surveillance overlapped. However, that this wall even existed was found by the Foreign Intelligence Surveillance Court of Review to have actually been a long-held misinterpretation by government agencies. Section 203 also gave authorities the ability to share information gathered before a federal grand jury with other agencies. Though not related to surveillance, the title also covers trade sanctions against the Taliban — a group which was determined by the Secretary of State to have repeatedly provided support for acts of international terrorism – and the export of agricultural commodities, medicine, or medical devices is now pursuant to one-year licenses issued and reviewed by the United States Government. It also excluded export of agricultural commodities, medicine, or medical devices to the Government of Syria and to the Government of North Korea.
Scope of allowed surveillance The title allows surveillance to intercept communications via pen register or trap and trace devices. It does not allow these surveillance measures to be used in violation of the First Amendment rights of U.S. citizens. To assist in an investigation undertaken to protect against international terrorism or clandestine intelligence activities, the title allows for the seizure of communications records (section 215) and any records of session times, durations of electronic communication as well as any identifying numbers or addresses of the equipment that was being used (section 210). Such orders may be granted ex parte, and once they are granted – in order to not jeopardize the investigation – the order may not disclose the reasons behind why the order was granted. Section 209 made it easier for authorities to gain access to voicemail as they no longer must apply for a wiretap order, and instead just apply for a normal search warrant. All orders granted under section 215 must be disclosed to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate. Every six months, the Attorney General must also provide a report to the Committees on the Judiciary of the House of Representatives and the Senate which details the total number of applications made for orders approving requests for the production of tangible things and the total number of such orders either granted, modified, or denied. Under section 211, the United States Code was amended to allow the government to have access to the records of cable customers, with the notable exclusion of access to records revealing cable subscriber selection of video programming from a cable operator.
Disclosure Section 212 stopped a communications provider from disclosing the contents of communications with another party. However, if the provider "reasonably" (not defined) believes that an emergency involving immediate danger of death or serious physical injury to any person is imminent, then the communications provider can now disclose this information without fear of liability. The provider may also disclose communications at the request of a government agency, if the customer allows it to be disclosed, or in cases where they must do so to protect their rights or property. Section 212 was later repealed by the Homeland Security Act of 2002 and was replaced with a new and permanent emergency disclosure provision.
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