Foreign Intelligence Surveillance Act: before and after the USA Patriot Act - Legal Digest

FBI Law Enforcement Bulletin,The,  June, 2003  by Michael J. Bulzomi

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It is important to note that additional safeguards are built into FISA if the target of the monitoring or search is a U.S. citizen or an alien admitted for permanent residence. The burden placed upon the government to obtain a FISA order is higher if the target is a U.S. person. (27) The act clearly states that the simple exercise of First Amendment rights by U.S. persons cannot be the basis for considering that person to be an agent of a foreign power. (28) The act also clearly establishes how and when information regarding a U.S. person may be used. (29)

USA PATRIOT Act and Information Sharing

An extremely important aspect of the USA PATRIOT Act is that it permits greater sharing of intelligence information between law enforcement and national security investigators, regardless of the source of the intelligence information. Section 203 of the USA PATRIOT Act amends Rule 6 of the Federal Rules of Criminal Procedure to permit the disclosure of grand jury information containing foreign intelligence information to "any federal law enforcement, intelligence, protective, immigration, national defense, or national security official in order to assist the official receiving that information in the performance of his official duties." (30) The reporting requirement differs in that the name of the individual receiving the information is not given to the court, only the department or agency receiving the information. This section also amends Title III (the federal wiretap statute) to permit the same type of disclosure of intelligence information gathered during a court authorized criminal wiretap. (31)

Section 905 of the act (32) underscores the importance that Congress assigns to information sharing. That section requires the attorney general, or any head of a federal department or agency with law enforcement responsibility, to promptly disclose to the director of the CIA any foreign intelligence information gathered as a result of a criminal investigation.

Other Related Amendments

The USA PATRIOT Act amended many federal statutes in significant ways that are important to criminal and intelligence investigators. It is impossible to discuss all of these amendments in this limited space. However, some of these amendments should be mentioned.

A very significant change is that the USA PATRIOT Act makes terrorism a predicate offense allowing for a wiretap under Title III. (33) Investigators now have a choice, depending on the nature of the investigation, to apply for a FISA order or a Title III wiretap order.

In addition, the act also allows for a roving wiretap under FISA. (34) Roving wiretaps allow law enforcement to respond to time-sensitive criminal or terrorist activity by continuing court sanctioned electronic surveillance, even if the target of the surveillance rapidly switches cellular telephones, Internet accounts, or meeting venues.

USA PATRIOT Act and Pen Registers and Traps and Traces

FISA contains specific provisions regarding the use of pen registers and traps and traces in foreign intelligence investigations. (35) Section 214 of the USA PATRIOT Act changes the standard for issuing pen registers and trap and trace orders. FISA pen registers and traps and traces now can be obtained when the government certifies that the information likely to be obtained is foreign intelligence information not concerning a U.S. person or is relevant to ongoing investigations to protect against terrorism or clandestine intelligence activities. (36) Prior to the USA PATRIOT Act, pen register and trap and trace orders required showing that there was relevance to an investigation and that there was reason to believe that the targeted line was being used by an agent of a foreign power or someone in communication with such an agent under certain circumstances. The second requirement no longer exists.