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Letter to Peter Fitzgerald by Sean Collins-Stapleton May 11, 2005 Several provisions of the USA PATRIOT Act ("Patriot Act" or "Act") are set to sunset this year. In the coming months, Congress will decide whether to allow these provisions to expire or to reenact or to amend them. The debate on the Act's search and surveillance provisions should be informed by two fundamental Fourth Amendment principals. First, searches should be allowed only when the government possesses articulable facts giving reason to believe that the individual targeted is involved in some wrongdoing. Second, the targeted individual must be provided with notice and the opportunity to challenge the government's activities. Adhering to these principals will aid in striking an appropriate balance between the federal government's interest in security and the right of the People to be free from unreasonable government intrusions. The Patriot Act in its current form has the distinct potential to upset this critical balance. The Patriot Act amended the 1978 Foreign Service Intelligence Act ("FISA"), which was enacted in response to the troubling findings of the 1976 Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities, otherwise known as the Church Committee. FISA sought to control the federal government's collection of foreign intelligence by creating a special court ("FISA Court"). FISA created an exception to the Fourth Amendment's requirement that searches be supported by probable cause of criminal wrongdoing. FISA warrants were not used to gather evidence in ordinary criminal investigations because they were specifically directed at the collection of foreign intelligence. This intelligence was primarily used by intelligence officials -- not prosecutors. The FISA Court could authorize surveillance when the target was linked to foreign espionage and the "primary purpose" of the surveillance was the collection of foreign intelligence. Suspicion of criminal conduct was not required. Unlike the warrants used in a typical criminal investigation, the target of a FISA warrant was not provided with notice of the surveillance. Section 218 of the Act allows a FISA warrant to issue so long as a "significant purpose" of the surveillance is to obtain foreign intelligence information, replacing the "primary purpose" standard. Accordingly, the primary purpose for a FISA warrant could be the collection of evidence in a routine criminal investigation so long as there is some nexus to foreign intelligence. The illegal drug trade is increasingly associated with terrorism and probably could be considered as "foreign intelligence information." As such, FISA warrants could be used to circumvent the Fourth Amendment's probable requirement in essentially routine criminal cases. Section 218 sunsets this year. The Patriot Act's amendments to FISA have the potential to neutralize the Fourth Amendment's probable cause requirement in yet another way. Section 505 of the Act, which sunsets this year, allows information gathered pursuant to a FISA warrant to be shared with federal prosecutors. As such, the "wall" that had separated prosecutors and intelligence officials is down. In this context, several questions arise. For example, when is it appropriate for investigators to utilize a FISA warrant, as opposed to a regular warrant which must be based on probable cause of criminal wrongdoing? If prosecutors direct the use of FISA warrants in a criminal investigation and no action is taken against the targeted individual, should the individual be notified of the surveillance? How long should records relating to a FISA warrant be kept and should an individual targeted by a FISA warrant have the right to learn about its existence? The Patriot Act has the potential to evade Fourth Amendment protections in yet another way. Section 215 of the Act allows the F.B.I. to make an application to a magistrate judge for an order requiring the production of any tangible thing for an investigation to protect against international terrorism or clandestine intelligence activities. The judge must enter an ex parte order if the application meets section 215's requirements. In the same vein, Section 505 of the Act provides for an administrative subpoena for various records. Sections 215 and 505 are subject to the Act's sunset provision. There are several questions concerning the application of these Sections. For example, what standard is used to determine whether an item is relevant to an investigation? When should a Section 215 order or Section 505 subpoena be employed rather than an ordinary warrant or a grand jury subpoena, which require a showing of probable cause? Should the subject of a section 215 order or a section 505 subpoena be provided with notice of the searches? How long should records relating to such an order or subpoena be kept and should the targeted individual have the right to learn about the search? Ultimately, the Act's search and surveillance provisions should not be reenacted unless there are sufficient guarantees that the Act has not been, and will not be, used to circumvent the protections guaranteed by the Fourth Amendment. Sean Collins-Stapleton
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