* Let the Sun Set on PATRIOT - Section 220:
"Nationwide Service of Search Warrants for Electronic Evidence"
Welcome to part five of "Let the Sun Set on PATRIOT," an EFFector
series on the battle to let some of the most troubling provisions
in the USA PATRIOT Act expire, or "sunset." Each week, we profile
one of the 13 provisions set to expire in December of 2005 and
explain in plain language what's wrong with the provision and why
Congress should allow it to sunset.
This week we look at Section 220, which allows the FBI to get
search warrants for electronic evidence that apply nationwide.
This threatens your Constitutional rights by enabling the FBI
to "shop" for judges most sympathetic to law enforcement, by
reducing local judicial oversight and by lowering the chances
that your ISP or phone company will challenge the warrant to
protect your privacy.
~ How Section 220 Changed the Law
Before PATRIOT, the FBI could execute a search warrant for
electronic evidence only within the geographic jurisdiction
of the court that issued the warrant - for example, the FBI
couldn't get a New York court to issue a warrant for email
messages stored by your ISP in California.
After PATRIOT, courts can issue warrants for electronic
evidence - your email messages, your voice mail messages and
the electronic records detailing your web-surfing - anywhere
in the country. Notably, Section 220 isn't reserved for
terrorism-related investigations, despite the fact that
PATRIOT was sold to the American public as a necessary
anti-terrorism measure. Instead, it applies in any kind of
criminal investigation whatsoever.
~ Why Section 220 Should Sunset
Section 220 significantly increases the chances that search
warrants that fail to meet Constitutional standards will be
used to search and seize your electronic communications:
* Section 220 allows the FBI to pick and choose which courts
it can ask for a search warrant. This means it can "shop"
for judges that have demonstrated a strong bias toward law
enforcement with regard to search warrants, using only those
judges least likely to say no - even if the warrant doesn't
satisfy the strict requirements of the Fourth Amendment to
the Constitution.
* By allowing courts to issue warrants to be served on
communications providers in far-away states, Section 220
reduces the likelihood that your ISP or phone company will
try to protect your privacy by challenging the warrant in
court, even if the warrant is clearly unconstitutional.
A small San Francisco ISP served with such a warrant is
unlikely to have the resources to appear before the New
York court that issued it. Yet because you won't
be notified if a search warrant is used to get your
electronic communications, your ISP is the only entity in
a position to fight for your rights.
The FBI argues that having to secure search warrants from
more than one court during an investigation is a waste of
time. But local judicial oversight is a key check against
unreasonable searches. Further, the FBI already has the
ability to conduct emergency searches without a warrant
when it doesn't have time to go to a local judge.
Even worse, Section 220 isn't necessary to help combat
terrorism - PATRIOT section 219 already allows nationwide
search warrants in terrorism-related investigations. The
only practical result of Section 220 is less paperwork
for the FBI - at the expense of your Constitutional rights.
~ Conclusion
Section 220 threatens your Fourth Amendment right against
unreasonable searches and seizures. EFF strongly opposes
its renewal, and we urge you to oppose it, too. We also
support the Security and Freedom Ensured Act (SAFE Act,
S 1709/HR 3352) and encourage you to visit EFF's Action
Center today to let your representatives know you support
the bill:
<http://action.eff.org/action/index.asp?step=2&item=2866>
~ Next Week
We'll look at Section 212, which allows your ISP or phone
company to share your communications with the government
even if it isn't served with a search warrant.
For this section analysis:
<http://www.eff.org/Privacy/Surveillance/Terrorism/PATRIOT/sunset/220.php>
Previously profiled:
Section 209: "Seizure of Voice Mail Messages Pursuant to Warrants"
<http://www.eff.org/Privacy/Surveillance/Terrorism/PATRIOT/sunset/209.php>
Section 207: "Duration of FISA Surveillance of Non-United States
Persons Who Are Agents of a Foreign Power"
<http://www.eff.org/Privacy/Surveillance/Terrorism/PATRIOT/sunset/207.php>
Section 206: "Roving Surveillance Authority Under the Foreign
Intelligence Surveillance Act of 1978"
<http://www.eff.org/Privacy/Surveillance/Terrorism/PATRIOT/sunset/206.php>
Section 215: "Access to Records and Other Items Under the
Foreign Intelligence Surveillance Act"
<http://www.eff.org/Privacy/Surveillance/Terrorism/PATRIOT/sunset/215.php>
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