Image Credits: @chrisyangchrisfilm on Unsplash (Unsplash License)

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On September 11, 2001, hijackers gained control of four commercial airliners, flying them into the North and South World Trade Center Towers and the Pentagon. The fourth aircraft, flight United 93, crashed into a field in Pennsylvania, likely destined to strike the U.S. Capitol. 

The 9/11 attacks forever changed the way Americans viewed the risk of terrorism and their tolerance of the tools deemed necessary to prevent it. In polls conducted after the attacks, 58 percent of Americans expressed concern for themselves or their families being victims of terrorism, and 47 percent stated that civil liberties could be violated to prevent future attacks. 

With thousands dead and millions terrified, Congress swiftly passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act by overwhelming bipartisan majorities of 357-66 and 98-1.

The 342-page bill, consisting of ten Titles, increased domestic protections against terrorism (Titles I, IV), tackled a series of miscellaneous national security issues ranging from money laundering to the issuance of hazmat licenses (Titles III, VI, VIII, X), and significantly expanded the authorities of intelligence and law enforcement agencies (Titles II, V, VII, IX).

Civil liberty groups quickly criticized the law as a “rush job” that “threaten[s] […] civil liberties” and lacks “traditional […] safeguards.” Conversely, the federal government argued that the act gave “investigators the ability to fight terror, using many of the court-approved tools that have been used successfully for many years in drug, fraud, and organized crime cases” and that the USA PATRIOT Act simply places “those who access the Internet […] on the same footing as everyone else.” Title II of the USA PATRIOT Act, “Enhanced Surveillance Procedures,” became “perhaps the ‘most controversial’ provision in the Patriot Act” for its expansion of surveillance authorities. 

Pre-USA PATRIOT Act Surveillance Law

Traditionally, the federal government’s surveillance authorities could be classified into two distinct categories: domestic surveillance and foreign surveillance. The former, primarily conducted by federal, state, and local law enforcement agencies, was governed by strict constitutional protections, while the latter, mainly the realm of “spy agencies” like the Central Intelligence Agency (CIA) and the National Security Agency/Central Security Service (NSA/CSS), was essentially limited to “what the United States government and its agents [could] get away with.” 

In 1972, the Supreme Court unanimously reaffirmed this distinction in United States v. United States District Court (1972), rejecting the Nixon Administration’s national security justification of warrantless wiretaps, holding that: “[t]he freedoms of the Fourth Amendment cannot properly be guaranteed if domestic, security surveillances are conducted solely within the discretion of the Executive Branch without the detached judgment of a neutral magistrate.”

In 1978, following revelations that President Richard Nixon illegally directed the FBI, CIA, and NSA to surveil various domestic political and advocacy groups, Congress passed the Foreign Intelligence Surveillance Act of 1978 (FISA). The 16-page bill sought to balance privacy and transparency concerns with the federal government’s legitimate national security interest in conducting covert surveillance of foreign agents operating within the United States. Title I of FISA, “Electronic Surveillance within the United States for Foreign Intelligence Purposes,” established the Foreign Intelligence Surveillance Court (FISC or FISA Court). 

The FISA Court system required federal agents to submit “application[s] for an order approving electronic surveillance […] to a [FISC] judge” and a high-ranking national security official to certify “that the purpose of the surveillance is to obtain foreign intelligence information [and] that such information cannot reasonably be obtained by normal investigative techniques.” Citing “the need to protect classified national security information,” the FISC conducts the majority of its work ex parte, meaning that the federal government is the only party in court. Records from the court’s hearings are rarely released to the public, and the federal government has never published the contents of a FISA application.

While FISA provided some necessary judicial oversight and reform, it blurred the previous long-standing distinction between constrained domestic surveillance and unconstrained foreign surveillance. Now, surveillance activities fall into one of three categories: domestic surveillance of a U.S. citizen (Fourth Amendment protections), foreign surveillance of a foreign power (little to no restriction), and surveillance of a foreign agent in the United States (FISA Court approval). In his 2004 UCLA Law Review Article, Losing Liberties: Applying a Foreign Intelligence Model to Domestic Law Enforcement, Duke Law Professor Erwin Chemerinsky argues that this new third category circumvents “the checks and balances built into the Constitution for domestic actions […] when the foreign model [of surveillance], with few or no checks, is applied within the United States.” Since 1978, Congress expanded the FISC’s power, amending FISA to include physical searches with the Intelligence Authorization Act of 1995 and allowing the use of pen registers and “trap and trace” devices to monitor telephonic communications and internet browsing with the Intelligence Authorization Act of 1996. The most significant expansion of authorities, however, came in 2001 with the USA PATRIOT Act, which eased the original requirements of FISA while expanding the methods by which the federal government could conduct surveillance.

Section 218: Easing Original Requirements of FISA, Expanding Scope

Title II of the USA PATRIOT Act substantially broadened the purpose and potential use of surveillance activities permissible under FISA. Specifically, Section 218, “Foreign Intelligence Information,” amended FISA’s requirement that the “purpose of the surveillance [be] to obtain foreign intelligence information” (emphasis added) to state that foreign intelligence gathering be only a “significant purpose.” 

This modification substantially enlarged “the universe of criminal cases in which the government could invoke FISA to gather evidence” and blurred previous categories of permissible domestic surveillance. The Department of Justice (DOJ), which had initially enacted procedures to separate its Criminal Division and the FBI’s FISA surveillance activities in 1995, cited Section 218 to dismantle “the wall [it] had erected between criminal and foreign intelligence investigations.” 

Sections 206, 207, 213, 215: Expanding the Methods of Federal Surveillance

While Section 218 lowered the threshold for permissible FISA activities, other elements of Title II significantly expanded surveillance methods available to the federal government. Section 206, “Roving Surveillance Authority under [FISA]” and Section 207, “Duration of FISA Surveillance of Non-United States Persons Who are Agents of a Foreign Power,” decreased the number of warrants required to surveil one target and increased the possible duration of FISC search orders.

Section 213, “Authority for Delaying Notice of the Execution of a Warrant,” grants federal courts, not just the FISC, the authority to issue “Sneak and Peak” warrants, which allow the covert entry and search of a property while delaying notice. While courts had previously allowed the admission of evidence obtained from “Sneak and Peak” searches in the 1990s, notably in U.S. v Freitas (9th Cir. 1986) and U.S. v. Pangburn (2nd Cir. 1993), the USA PATRIOT Act was the first explicit authorization of these warrants which can be issued for “connection with any federal crime, including misdemeanors.” In 2020, the courts granted close to 20,000 Section 213 warrants with approximately 14,000 authorizations relating to cases involving drugs and fewer than 250 for investigating terrorism. Every year since 2007, when the Director of the Administrative Office of the U.S. Courts began publishing statistics, Section 213 warrants have been overwhelmingly used in cases involving narcotics (between 65 percent and 84 percent).

Section 215, “Access to Records and Other Items under [FISA],” also known as the “Tangible Things” provision, broadly expanded FISA to allow federal agents to “make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities.” Notably, Section 215 authorizes the collection of information about American citizens “provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.” Starting in 2006, the NSA cited Section 215 authorities to collect millions of Americans’ phone records from telecommunications service providers on a daily basis. In 2015, the U.S. Court of Appeals for the Second Circuit deemed the NSA program illegal in ACLU v. Clapper (2nd Cir. 2015), and Congress expressly prohibited the practice a month later.

Difficulty of Fourth Amendment Challenges to Surveillance Authorities

The secrecy inherent to national security investigations under USA PATRIOT Act authorities and the FISA Court precludes many traditional avenues for Fourth Amendment challenges utilized by criminal defendants.

On paper, 50 U.S.C. § 1806(e) grants “[a]ny person against whom evidence [was] obtained or derived from an electronic surveillance” the ability to make a motion to suppress, a common procedure in criminal court, on the grounds that the information was unlawfully obtained or that surveillance violated the FISC’s order. However, defendants are unlikely to obtain the documents necessary to mount a vigorous motion to suppress as 50 U.S.C. § 1806(f) allows the Attorney General to prevent disclosure of FISA applications and orders if “disclosure […] would harm the national security.” While there is a theoretical path by which defendants could obtain documents despite the government’s objections, in practice, “no judge in FISA’s nearly three-decade history has ever disclosed FISA documents to an aggrieved person to allow for an adversarial suppression hearing.” 

Further, Section 213’s delayed notification “Sneak and Peak” warrants, while potentially preventing “flight, destruction of evidence, or placing a witness in peril,” also hinder an individual’s ability to challenge the initial legality of a search. 

Conclusion

Since 2001, Congress reauthorized key provisions of the USA PATRIOT Act in 2005, 2006, 2011, and finally in 2015 with the passage of the Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring (USA FREEDOM) Act. In 2020, Congress failed to reauthorize controversial portions of Title II, including Section 215, which expired. The federal government, however, still retains many of the other powers enumerated in the USA PATRIOT Act and has continued to expand the power of FISA courts through the Protect America Act of 2007, the FISA Amendments Act of 2008, and the FISA Amendments Reauthorization Act of 2017.