I. INTRODUCTION

The USA PATRIOT Act of 2001, (1) signed into law on October 26, 2001, became a formidable weapon in the United States' war against terrorism. Enacted quickly in response to the September 11th terrorist attacks, Congress strengthened the abilities of U.S. law enforcement and intelligence communities to combat terrorism on a variety of fronts. The PATRIOT Act ushered in sweeping changes to several key areas of law. Specifically, it expanded law enforcement and foreign intelligence authority in the areas of electronic intelligence gathering, including Internet surveillance. (2)

By enhancing the government's ability to conduct surveillance, however, this far-reaching legislation severely diminishes critical privacy protections to an "unprecedented degree." (3) The PATRIOT Act authorizes law enforcement to use increased surveillance techniques, "including the ability to conduct covert searches, obtain sensitive personal records, track e-mail and Internet usage, and evade the Fourth Amendment's probable cause requirement." (4)

Furthermore, federal agents can "exercise these powers with minimal judicial and Congressional oversight." (5) The Act's possible effect on providers and users of telecommunications, including wireless phones, email, and the Internet, is incredibly broad. (6) Moreover, law enforcement agents expect to increase their interception and monitoring of electronic communications. (7) In fact, the likelihood of a wiretapping, for example, is expected to rise by a factor of ten. (8) Already, many telecommunications carriers have turned over customer data to law enforcement agents. (9) Likewise, concerns about misuse of the law have started to surface. (10)

This Article summarizes and evaluates those portions of the PATRIOT Act that have the most profound impact on the privacy interests of telecommunications users and carriers, including Internet Service Providers ("ISP"s). Part I provides a brief background of the evolution of U.S. national security efforts, telecommunications and foreign intelligence law, and the role of the executive branch, leading up to the passage of the PATRIOT Act. Part II then outlines and critiques the various provisions of the PATRIOT Act, discussing the critical Fourth Amendment implications and related privacy concerns. Provisions related to searches and subpoenas are first examined, followed by aspects pertaining to wiretapping and voluntary disclosure. Part III concludes with suggestions for legislative and judicial oversight and revision.

II. BACKGROUND

National security laws and foreign intelligence gathering are certainly not new, as they date back to the birth of this nation. (11) In fact, war-time threats to national security have led to such laws as the Espionage Act of 1917, (12) which granted the government greater surveillance authority. Since the days of George Washington and Thomas Jefferson, U.S. presidents have also sought broad executive control over foreign intelligence matters and national security. President Woodrow Wilson, for example, authorized the surveillance and wiretapping of German delegations to the United States. (13)

Widespread government intelligence gathering and surveillance escalated through the 1960s, as electronic surveillance technology, such as wiretapping, became increasingly important. For many years, wiretaps were authorized with minimal judicial or Congressional oversight. (14) Finally, a landmark Supreme Court ruling limiting surveillance (15) prompted Congress to take a more active role, focusing on privacy issues.

In 1968, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act, (16) commonly known as the "federal wiretapping statute," to create a uniform procedure for domestic electronic surveillance in criminal cases. Title III authorizes law enforcement agents to obtain a warrant (17) to engage in electronic surveillance activities but under limited conditions (18) and only if a judge finds probable cause that the target "is committing, has committed, or is about to commit a particular offense." (19) Congress sought to effectively balance privacy interests against law enforcement needs, and the probable cause requirement was particularly important in meeting Fourth Amendment (search and seizure) scrutiny.

Yet executive authority to engage in foreign intelligence surveillance was not meant to be limited, (20) and abuse continued. (21) To clarify the power of the executive branch in matters of foreign intelligence gathering, Congress enacted the Foreign Intelligence Surveillance Act of 1978 ("FISA"). (22) FISA essentially allows electronic surveillance (23) and physical searches (24) of foreigners and U.S. citizens when there is "probable cause to believe that ... the target ... is a foreign power or an agent of a foreign power." (25) Still, standards for obtaining a warrant are much less rigorous than under Title III (26) since the information sought is not for criminal prosecution, but only for intelligence gathering, which does not require a showing of probable cause of a crime. Furthermore, applications for FISA warrants are submitted in secret. (27) Various courts have nonetheless found FISA to be a constitutional balancing of Fourth Amendment rights against national security needs for foreign intelligence gathering. (28)

By the mid-1980s, advances in telecommunications technologies presented new concerns not addressed by Title III. Thus, in 1986, Congress enacted the Electronic Communications Privacy Act ("ECPA") (29) as an amendment to Title III, to update the law's language and to cover such technologies as wireless voice communications, stored electronic communications such as electronic mail, and devices that could record incoming and outgoing telephone numbers dialed. (30) Surveillance authorization, however, varies. For example, e-mail surveillance requires a search warrant while the use of telephone devices that do not capture content require only a "judicial order with a certification that 'the information ... obtained is relevant to an ongoing criminal investigation.'" (31)

The federal government, prompted partly by acts of terrorism like the 1993 bombing of the World Trade Center and the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, nevertheless demanded greater surveillance authority during the 1990s. (32) In 1994, law enforcement agencies were given considerable latitude with the enactment of the Communications Assistance for Law Enforcement Act ("CALEA"). The CALEA requires a telecommunications provider to make "its equipment, facilities, or services ... capable of ... enabling the government ... [without a warrant] (33) to intercept ... all wire and electronic communications carried by the carrier." (34) Later, while U.S. embassies and a Navy destroyer were bombed, (35) the government began developing high-tech FBI surveillance operations such as Carnivore, which secretly captures and tracks e-mail and web communications, (36) and Echelon, a worldwide satellite surveillance system that listens for "key words and phrases" like "bomb" and "kill the president." (37) Law enforcement officials also asked the FCC for easy access to cell phone location information. (38) Such government efforts aimed at expanding authority have been controversial, however, and subject to limitation. (39)

Thus, when terrorists hijacked planes and struck the World Trade Center towers and the Pentagon on September 11, 2001, the White House and Congress reacted quickly in securing greater executive authority and increased surveillance authority for law enforcement. Widespread fear and public support for combating terrorism and bolstering national security helped spur the effort. (40) Within just six weeks of the attacks, the Bush administration successfully ushered in a new law, amending FISA, the ECPA, and Title III, and including a number of provisions that federal law enforcement agencies had sought unsuccessfully for years. (41) On October 26, 2001, the USA PATRIOT Act (42) was signed into law.

Unfortunately, in the rush to enact the PATRIOT Act, broad new powers were created with insufficient scrutiny given to the wording of most provisions. Congress spent very little time studying, debating, or hearing expert testimony on the proposed sections. (43) Normal procedural processes, such as inter-agency review and committee hearings were suspended. (44) As a result, many provisions were not checked for their constitutionality, lack of judicial oversight, and potential for abuse. Furthermore, Congress did not consider the chance that law enforcement might use electronic surveillance to monitor activity unrelated to terrorism..

The following section outlines and examines those provisions pertaining to telecommunications users and providers. Secret electronic surveillance of communications, particularly over the Internet, poses serious concerns as millions of unsuspecting Americans use and rely on information services daily. The PATRIOT Act effectively tears down the legal firewalls erected a quarter of a century ago, tipping the balance in favor of government control and away from personal privacy.

III. THE USA PATRIOT ACT

The USA PATRIOT Act, 342 pages in length, makes both major and minor changes to more than fifteen different statutes. (45) Although many provisions pertain to electronic surveillance matters, many other sections are devoted to money laundering, immigration, and providing for the victims of terrorism. The Act includes a sunset provision (46) stipulating that many of the provisions will expire on December 31, 2005; however, some of the sections relevant to the privacy interests of telecommunications users and providers are permanent.

This section explains and analyzes the various new provisions governing telecommunications activities, searches, seizures, and surveillance. This analysis will first cover the numerous changes in law enforcement, search warrants and subpoenas affecting telecommunications firms, such as ISPs, and the privacy interests of subscribers. Second, changes involving wiretapping procedures, including the use of pen registers and trap and trace devices for monitoring telephone and Internet communications, are discussed. Finally, provisions promoting voluntary disclosure and government access given by ISPs are covered.

A. Searches And Subpoenas

At the heart of the Fourth Amendment is the freedom from unwarranted searches and seizures. (cite to Fourth Amendment?) Yet the PATRIOT Act greatly expands the scope of government authority when it comes to search warrants and subpoenas of telecommunications companies and subscribers. In particular, the PATRIOT Act allows for greater law enforcement access to ISP and cable company business records and subscriber records, as well as voicemail messages and personal communications property, such as a home computer.

1. Business Records

One aspect of the PATRIOT Act that should be of particular concern to ISPs and other telecommunications firms is section 215, (47) which relaxes the requirements and expands the reach of the Foreign Intelligence Surveillance Act of 1978. (48) In part, it permits the FBI to obtain a court order requiring the production of not just "records," but "any tangible things (including books, records, papers, documents, and other items) [sought] for an investigation to protect against international terrorism or clandestine intelligence activities." (49) Previously, FISA section 501 (50) only pertained to records of "common carrier[s], public accommodation facilit[ies], physical storage facilit[ies], [and] vehicle rental facilit[ies]." (51) By expanding the scope, Congress has now put the computer servers, records, and other property of ISPs and other telecommunications entities within greater reach of law enforcement agents.

One particular concern with this and similar provisions, is that one whose records are sought need not be an agent of a foreign power. United States citizens could potentially be investigated on account of activities connecting them to an investigation of international terrorism, provided that the investigation is "not conducted solely upon the basis of activities protected by the [F]irst [A]mendment to the Constitution." (52)

This section is problematic in other ways. Judges, for example, have no authority to deny a request if "the application meets the requirements of this section." (53) It is unnecessary to report the actual documents seized or their usefulness to the court or Congress. (54) While section 215(e) does not waive any privilege, persons served by an order are gagged. (55) Furthermore, "the [A]ct overrides federal privacy statutes and explicitly bars notice to the party whose records are being disclosed." (56) Individuals would be unaware of whether the government is unfairly inquiring into their "extremely private information." (57) This section is nonetheless scheduled to sunset December 31, 2005. (58)

2. ISP Subscriber Records

If the previous section raises eyebrows, section 210 (59) should sound alarms for both ISPs and their customers. While section 215 broadly pertains to subpoenas of any company's business records, section 210 specifically covers Internet providers and broadens the types of subscriber records that law enforcement can obtain via subpoenas. The result is likely to be a marked increase in subpoenas issued regarding subscribers.

The PATRIOT Act amends the ECPA, (60) which, in response to a proper subpoena, has traditionally required electronic communications services and remote computing services to reveal a subscriber's name, address, phone number and billing records, the types of services used, and the length of use. (61) These old rules, however, primarily covered traditional telephone communications and did not define terms in the context of the Internet. The PATRIOT Act expands the items that must be disclosed to include the "records of session times and durations, any temporarily assigned network addresses, [and the] means and source of payment for such service of a subscriber (including any credit card or bank account number)...." (62)

The purpose of the new law is to make it faster and easier to identify anyone using Internet accounts for "unlawful purposes." (63) In many cases, subscribers register with ISPs using false names; thus, obtaining the method of payment can be essential to determining true identity. (64) The "temporarily assigned network addresses" include the "IP address for the session, as well as the remote IP address from which the customer connects to the provider." (65) Such information will expedite "identifying computer criminals and tracing their Internet communications...." (66)

Unfortunately, while section 210 does not extend to the actual contents of the communication, it does increase the amount of information available to law enforcement. More importantly, it will allow government agents, using administrative subpoenas, to obtain information from service providers without having to obtain court orders. (67) This is expected to result in an increase in the number of such subpoenas served on service providers. (68) Like certain other provisions of the Act, this portion does not sunset. (69)

3. Voicemail

The ability to seize voicemail messages was also made much easier under the PATRIOT Act. Section 209 removes voicemail from Title III purview and treats it as stored data as opposed to stored wire communications. (70) As a result, it essentially allows police to get voicemail messages with only a search warrant instead of the traditional and more difficult to obtain Title III wiretap order. (71)

This new provision puts voicemail on par with e-mail when it comes to government access. (72) Under the ECPA, phone calls were distinct "from non-voice communications such as faxes, pagers, and e-mail." (73) The ECPA controlled law enforcement's ability to gain access to stored electronic communications like e-mail; it did not cover access to stored wire communications like voicemail. (74) It has been argued that since e-mail may include attachments comprised of other types of data, including voice recordings, agents attempting to obtain unopened e-mail from an ISP with a search warrant would be unaware that the suspect's inbox messages contained voice attachments not covered by a search warrant. (75) As a result, the PATRIOT Act provides that stored wire and electronic communications are governed by the same rules. (76) Now, law enforcement agents need to obtain only a search warrant instead of an intercept order to retrieve unopened voice messages stored in voicemail boxes. (77)

By eliminating the burdensome process of obtaining a wiretap order, though, this provision ultimately encourages more government searches. Even case law that required the government to apply for a Title III warrant is now overturned. (78) This provision does, however, sunset in 2005. (79)

4. Cable Company Subscriber Records

The PATRIOT Act also reduces privacy protections for cable Interact subscribers. Section 211 (80) makes it clear that the ECPA, not the Cable Communications Policy Act ("Cable Act"), (81) governs the release of cable company customer records. (82) As a result, when cable-based ISPs are served with a lawful surveillance request to produce customer data about their Internet service subscribers, they no longer need to notify the subscribers as they did under the Cable Act. (83)

Since 1984, the Cable Act has mandated strong privacy protection for cable providers' customer records. (84) It was intended to protect cable subscribers from law enforcement access to information regarding the content of cable programming they view. (85) Under the Cable Act, law enforcement authorities are permitted to obtain "cable subscriber information" (86) only upon advance notice to the subscriber. (87) The Cable Act gives the customer the right to first appear in court with an attorney to contest the order, (88) while the police or FBI try to justify to the court the need to obtain customer records. The court may then order disclosure of the records only if it finds, by clear and convincing evidence, that the subscriber is "reasonably suspected of engaging in criminal activity." (89) That standard is greater than probable cause or even preponderance of the evidence. (90)

When cable companies began offering Internet access services, however, a conflict arose as to whether those restrictive provisions would apply to a cable subscriber's Internet communications. (91) In the 1999 cable case In re United States of America, (92) a district court issued a memorandum in favor of the government's application for a court order, but avoided resolving the statutory conflict. Similarly, a year later in United States v. Kennedy, (93) another court also chose not to make a determination. Section 211 of the PATRIOT Act resolves the question, giving law enforcement easier access to information on the Internet activities of cable subscribers.

This change, while putting a cable system's Internet privacy protection on par with that of other ISPs, nonetheless strips away privacy protection previously enjoyed by cable subscribers. Section 211 now makes available, without notice, such information as "the identification of persons with whom subscribers communicate ... and their subscription records." (94) Cable operators will certainly need to revise their policies and contracts to remove any promise to give prior notice when it comes to their Internet offerings.

In addition, this provision potentially presents problems as cable programming and Internet operations merge in appearance and function. The Cable Act still requires prior notice when law enforcement officers target the television programming purchased by a subscriber. (95) But convergence across the technical and billing operations of a cable system could make it difficult to separate the programming and Internet functions. Distinguishing traditional television programming from online programming availabilities may become increasingly difficult, potentially exposing currently protected subscriber programming information. This section does not sunset. (96)

5. "Sneak and Peak" Searches

Finally, while not specific to telecommunications, all telecommunications consumers should be aware of section 2 13, (97) which essentially hits home. This section allows federal agents to conduct covert searches of a person's home or office without notifying the person about the search warrant until after the search has been completed. Known as a "sneak and peek" search, this provision effectively permits the government to "enter a house, apartment or office with a search warrant when the occupant is away, search the property, take photographs and, in some cases, seize physical property and electronic communications and not tell the owner until some time later." (98) Notification may even be delayed for a "reasonable period" and "extended for good cause shown." (99)

Unfortunately, this provision contravenes core Fourth Amendment protections. "Knock and announce" has been a key principle of Fourth Amendment reasonableness. (100) In a search with delayed notice, one is prevented from asserting one's Fourth Amendment rights by challenging deficiencies in the warrant and assuring the search is conducted in accordance with the warrant. (101) For example, a person would not be able "to tell the officer serving the warrant that he is at the wrong address or ... question the officer as to why he is searching in dresser drawers when the warrant specifies a search for a stolen car." (102) Limitations on the warrant are "meaningless when the officer conducting the search has unsupervised discretion as to what, when and where to search." (103) It makes sense that "law-enforcement agents may request secret search warrants whenever it is to their advantage to do so[,] [and] [o]ver time, the delayed-notice exception may become the rule" (104) This broad new rule is not scheduled to sunset. (105)

B. Wiretaps

Surveillance authority, such as wiretapping, is also greatly expanded by the PATRIOT Act. Considerable leeway is given to law enforcement agents to surreptitiously monitor telephone and Internet communications. The PATRIOT Act specifically extends existing authority to the Internet and expands wiretap authority to nationwide jurisdiction and roving wiretaps. Yet Fourth Amendment privacy protections are lost as law enforcement relies on more lenient FISA standards that do not require a showing of probable cause. In addition, reduced oversight will increase the likelihood of more wiretaps and potential abuse, such as content monitoring and surveillance of large groups of innocent users.

1. FISA Authority

Traditionally, laws governing foreign intelligence gathering have differed from domestic intelligence gathering. (106) Specifically, foreign intelligence gathering is allowed without the same legal restrictions associated with domestic law enforcement. For example, "wiretapping conducted under the 1978 Foreign Intelligence Surveillance Act (107) does not contain many of the same checks and balances that govern wiretaps for [domestic] criminal purposes." (108) Historically, if the FBI was investigating a crime, it had to apply for a criminal wiretap under Title III and show probable cause of a crime being committed. (109) But under FISA, the requirements are more lenient, and probable cause of a crime is not needed to justify an intelligence wiretap. (110) Wiretapping conducted under FISA was only authorized, however, "when gathering foreign intelligence information [was] the sole or "primary purpose of the surveillance." (111)

The PATRIOT Act now blurs the line of separation between foreign intelligence surveillance and domestic law enforcement investigations. (112) Section 218 (113) of the Act amends FISA to effectively permit law enforcement agencies to conduct surreptitious wiretaps and searches under the looser standards of FISA. The new law only requires that the gathering of foreign intelligence be merely a significant purpose of the investigation as opposed to the primary purpose. (114) Thus, law enforcement can rely on FISA authority even if the primary purpose is a criminal investigation and not foreign intelligence. And since FISA does not require agents to show probable cause that a crime is occurring or about to be committed, the new law essentially allows law enforcement to circumvent the Fourth Amendment's probable cause requirement. It effectively makes it easier for law enforcement officials to wiretap people in the United States when conducting a criminal investigation, even if there is no probable cause of a crime. (115) Moreover, when intelligence gathering need only be a "significant purpose" of the wiretap, considerable latitude is given to wiretapping; it may virtually be used to monitor anyone merely suspected of working with terrorists or spies. (116)

The end result is that FISA now allows the FBI to carry out wiretaps and searches that, without a showing of probable cause, are likely unconstitutional. This contradicts earlier court rulings. In United States v. Truong Dinh Hung, (117) the Fourth Circuit held that "the executive should be excused from securing a warrant only when the surveillance is conducted 'primarily' for foreign intelligence reasons." (118) Other federal courts of appeals, when finding in favor of the surveillance power of the executive branch, have similarly focused on whether the primary purpose of a wiretap was foreign intelligence gathering. (119) One court, in fact, ruled against executive authority, stating that a "warrant must be obtained before a wiretap is installed on a domestic organization that is neither the agent of nor acting in collaboration with a foreign power, even if the surveillance is installed under presidential directive in the name of foreign intelligence gathering for the protection of national security." (120)

Unfortunately, the ability to obtain wiretap orders without establishing probable cause of a crime will increase the likelihood that law enforcement will abuse its surveillance powers. For example, police will probably prefer FISA wiretaps because they are easier to obtain. (121) FISA wiretaps are issued in a secret proceeding by a secret FISA court that only looks to see that certifications are present and not "clearly erroneous." (122) FISA warrant applications are nearly always granted and unlikely to be challenged. (123) They can last up to 90 days and sometimes longer, as opposed to Title III authority, which lasts only 30 days. (124) Since the orders remain secret, and because FISA does not require notice to be given to a target, "the subject of the order never knows that the government was spying on him." (125)

The American Civil Liberties Union ("ACLU") has expressed concern, warning "that the secret search and wiretap provisions could lead to an age of Big Brother-like surveillance." (126) It goes on to observe that "Americans who oppose U.S. policies and who are believed to have ties to foreign powers could find their homes broken into and their telephones tapped." (127) This section is, however, scheduled to sunset at the end of 2005. (128)

2. Pen Registers

Probably the most significant expansion of government surveillance powers is found in section 216. (129) This section essentially extends existing authority over pen registers (130) and trap and trace devices (131) to the Internet and other computer networks. Law enforcement agents use pen registers and trap and trace devices to trace outgoing and incoming telephone numbers of suspected criminals. "By broadening the concept to include the Internet, the statute allows officials to collect information such as the address and subject lines of an e-mail--arguably the Internet equivalent of a phone number," (132) as well as website addresses visited, Internet protocol addresses, port numbers and similar computer network addresses. (133)

By law, courts are now required to order the installation of a pen register and a trap and trace device to track both telephone and Internet "dialing, routing, addressing and signaling information" (134) anywhere within the United States when a government attorney has certified that the information to be obtained is "relevant to an ongoing criminal investigation." (135) By adding the terms routing and addressing to the existing language of the ECPA, (136) the government intentionally included Internet communications. (137) Because the terms routing and addressing are not defined, their scope is open to judicial interpretation. (138)

Civil libertarians argue that the language is too broad. (139) For example, the Bush Administration contends that "home page URLs constitute[] address information, readily acquired through a trap and trace." (140) Yet it is debatable whether internal page addresses can be acquired. (141) Libertarians point out that web activity is more informative and revealing than a phone number. (142)

Aside from not defining what the law includes, the new provision fails to define what it excludes. Section 216 specifically states that orders issued under this section cannot include the "contents of any wire or electronic communications." (143) However, in the case of e-mail messages and Internet usage, the question of where the line should be drawn between "dialing, routing, addressing and signaling information" and "content" is not addressed by the Act. For example, the "URL of a Website contains both address information (the equivalent of telephone numbers) and content--where a person has surfed and searched on the Internet." (144) The legislature deliberately did not define the term "content." (145) While "content" is statutorily defined, (146) that definition is vague and untested in the context of Internet communications. (147) The provision's legislative history reveals that "content" "includes the subject line in an e-mail message." (148) But it remains unclear what other information may be lawfully captured.

It is also unclear how "content" can technically be separated from non-content information and ultimately kept out of the hands of law enforcement agents. Unlike telephone communications where dialing information does not reveal content, e-mail messages move together in packets that include both address and content information. (149) While phone companies can simply supply the FBI with a list of phone numbers without revealing the content of the conversations, ISPs "don't actively separate e-mail content from addresses." (150) To execute a section 216 order, "somebody must separate the e-mail address from the content of the e-mail message." (151)

The FBI's solution is to obtain the entire message and then separate out the content information. (152) The FBI sometimes uses its controversial Carnivore Internet-surveillance system to accomplish the separating process. (153) Section 216 effectively "authorizes the government to utilize its new Carnivore, or DCS1000, system, a formidable tracking system that is capable of intercepting all forms of Internet activity, including e-mail messages, web page activity, and Internet telephone communications." (154) Basically, Carnivore is connected to an ISP thereby providing the FBI with all the communications running through the system. (155) This combination of hardware and software is supposed to "filter[] incoming and outgoing Internet traffic (including e-mail 'header' and content information) from a particular IP address or subscriber account to obtain the desired addressing and routing information." (156) The implementation of Carnivore technology has been highly debated, however, partly because, according to the FBI, the technology has the capability to capture "all information going to and from a subscriber account or IP address, including content information." (157) The FBI also admits to obtaining the communications of people who use the same ISP but who are not targets of the search. (158)

Libertarians argue that the government cannot be trusted to disregard protected content. (159) The government contends "that it only is interested in e-mail addresses and will ignore the 'content' of any messages." (160) In addition, whenever a trap and trace is implemented, the government must file in court "what agencies are involved, when the installation was done, how filters were set and what was captured." (161) Even so, relying entirely on the government's word that it will not access content is entirely unacceptable and inconsistent with the Fourth Amendment. Seizing the entire message amounts to an "unconstitutional extension" of the FBI's power. (162)

It is uncertain whether the section 216 amendments can endure constitutional scrutiny. (163) The constitutionality of pen register and trap and trace orders used on telephones is grounded in the notion that only telephone numbers, not the content of communications, are being accessed. (164) If addressing and routing information disclose "constitutionally protected content," these amendments would then fail constitutional scrutiny. (165) In addition, at least one state pen register/trap and trace statute provides "that "the use of a pen/trap device that's capable of accessing the content of communications requires a wiretap order even if the content-accessing features are not used in the particular situation for which the pen/trap order is being sought." (166)

Access to a court order is also problematic in that section 216 requires a "very low level of proof, far less than the probable cause standard[,] [which is] a standard that must be met now to authorize access to the contents of a communication." (167) As has been true for pen registers and trap and trace devices, law enforcement seeking access to Internet information now need only to certify that the information sought is "relevant to an ongoing criminal investigation." (168) Section 216 mandates that, upon receipt of certification, the judge is to issue the order even if he suspects that law enforcement is on "a fishing expedition that will yield up no relevant information." (169) Section 216 will result in more surveillance and encourage greater use of Carnivore. Section 216 does not sunset. (170)

Another related concern for ISPs to consider is their liability should they be ordered to host law enforcement devices such as Carnivore. Previously, "ISPs have reportedly complied with pen/trap orders by collecting the relevant information themselves, but not generally allowing foreign devices on their networks.' (171) If carriers claim to be technically deficient, it is unclear if they can refuse to CatTy out a surveillance order. (172) Service providers may now need to modify their privacy policies to avoid customer lawsuits claiming a breach of privacy protection. (173) Already, some ISPs have violated their privacy policies by cooperating with federal agent requests to install Carnivore. (174)

3. Nationwide Jurisdiction

Sections 216 and 220 (175) also grant federal courts the authority to issue pen register and trap and trace orders that are valid anywhere in the United States, not just within their own jurisdiction. Previously, pen register/trap and trace orders were limited by a court's jurisdiction (176) and thus had to be installed in that court's own judicial district. Now an order issued in Florida can be served on an ISP in New York or California, although the issuing court is required to have some jurisdiction over the crime being investigated. (177)

Nationwide service will likely result in providers being frequently asked to render assistance even though they are not specifically named in the order and the assistance being requested is not specifically defined. Nationwide service will make it very difficult for local or regional service providers to oppose, modify, or contest court orders because it will require them to travel to numerous courts in multiple jurisdictions, to address concerns over the breadth of court orders. Thus, such orders "effectively insulate law enforcement from challenge in court." (178) If a small San Francisco ISP believes that the FBI is using a pen/trap order from New York to view content illegally, it would need to commit resources to challenge the warrant in New York. (179) Considering these obstacles, "an ISP is unlikely to challenge an over-broad court order, or challenge FBI actions." (180)

Service across the nation also "marginalizes the role of the judiciary." (181) Because the law enforcement agent identifies the places to be searched after the judge has already issued the order, the court has effectively issued the "equivalent of a blank warrant." (182) This is inconsistent with the protections afforded under the Fourth Amendment, which requires warrants to "specify the place to be searched." (183) Here, a judge cannot effectively monitor how an order is being used to access information concerning Internet communications. (184) This section does not sunset. (185)

4. Roving Wiretaps

The PATRIOT Act also means more "roving wiretaps" can be expected on phone and Internet lines. A roving wiretap allows government agents to "intercept all of a suspect's wire or electronic communications relating to the conduct under investigation, regardless of the suspect's location when communicating." (186) Roving wiretaps are not new. In fact, since 1986, the ECPA has allowed law enforcement to follow a suspected criminal purposefully switching from one phone to another in an attempt to thwart a tap, without getting a new warrant. (187) In 1998, Congress created a much looser standard for roving wiretaps "by "allowing such surveillance when the target's conduct in changing telephones or facilities has just the effect of thwarting the tap." (188) Now, section 206 (189) of the PATRIOT Act expands this authority to FISA court orders, extending the use of roving wiretaps from criminal investigations to terrorist probes and eliminating the probable cause requirement.

Allowing roving wiretaps under FISA creates Fourth Amendment concerns and the potential for abuse. Under the Fourth Amendment, a warrant must specify the place to be searched in order to avoid random searches of innocent bystanders. (190) In the context of electronic surveillance, the Constitution should therefore require law enforcement officers applying for a court order to specify the phone they want to tap. Whether roving wiretaps violate the Fourth Amendment has not been decided by the Supreme Court. (191)

Along the same lines, the ECPA specified that before law enforcement could tap the telephone line of someone besides the suspect, they had to ascertain that the target actually was using the line. (192) The PATRIOT Act, however, does not mandate that law enforcement agents determine whether the target is still "using the phone or other means of electronic communication." (193) Thus, if the FBI obtains a FISA wiretap order, the FBI could continue its monitoring of all Internet communications at a given site even after the suspect's departure and, thereby invade the privacy of innocent users. (194)

FISA roving wiretaps also pose a greater challenge to privacy because they are authorized secretly (by the Foreign Intelligence Surveillance Court) without a showing of probable cause of a crime. (195) The government need not make any showing to a court that the particular information or communication to be acquired is relevant to a criminal investigation or that foreign intelligence gathering is the primary purpose. (196) Until this provision sunsets in 2005, (197) the result may be a "back door to massive wiretapping." (198)

C. Voluntary Disclosures

Finally, two other sections of the PATRIOT Act further increase the amount of information the government may obtain about online users. These sections allow ISPs to voluntarily hand over information to law enforcement without the need for any court order or subpoena. As a result, Fourth Amendment guarantees may be circumvented, and such discretion can give rise to abuse.

In the first instance, section 212 (199) permits the disclosure of both content and non-content information if the provider has a reasonable belief "that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure of the information without delay." (200) Any exceptions for disclosing information related to customer records are generally the same for disclosing the content of the communications. (201) Exactly who decides what is reasonable and to whom the disclosure should be made is not clear. (202)

Another part of the PATRIOT Act, section 217, (203) permits ISPs to request government wiretaps of the communications of hackers and other "trespassers" on their networks. Since it is believed that computer owners and operators are authorized to intercept trespassers' communications on their own networks, this provision was intended to protect law enforcement agents when the owner or operator gives that authority to them. (204) In this case, the agent must be "lawfully engaged in an ongoing investigation," and have "reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to the investigation." (205) Only communications to and from computer trespassers can be accessed. (206)

ISP discretion in turning over such information nonetheless leaves individual users with unsettled privacy concerns. Subscribers should carefully read their ISP's terms of service to see how, and under what circumstances, their ISP will hand over information to the government. In some cases, law enforcement may even make the emergency request to which an ISP may voluntarily comply, effectively allowing the government to engage in warrantless surveillance. (207) The extent to which ISPs can limit or withdraw consent is unclear. (208) In the wake of 9-11, ISPs can expect increased demands from law enforcement. ISPs should therefore take great care in developing and enacting objective policies and procedures to deal with such requests. For example, while section 217 does not recognize known customers of an ISP as a "trespasser," (209) the issue of "trespass" should be carefully evaluated by corporate counsel to avoid violating their own subscriber privacy assurances. Both sections 212 and 217 are scheduled to sunset in 2005. (210)

IV. CONCLUSION

Of the many provisions of the PATRIOT Act, a large number significantly affect the privacy interests of telecommunications providers and users. These provisions serve to increase the opportunities for law enforcement agents to engage in searches and surveillance of online operations while decreasing the privacy protections previously enjoyed by users. In some cases, the Act opens the door to easier access by the government by making court orders easier to get and by providing a means to circumvent the need to show probable cause. More information, such as "addressing" and "routing information," is now more readily available, while government requirements to document law enforcement activities and give notice to consumers are virtually eliminated. The Act effectively encourages more government surveillance with less accountability, judicial oversight, and opportunity to respond. Many of these new provisions are permanent.

Unfortunately, many of the new provisions pertaining to telecommunications users and providers are also potentially unconstitutional, in that they violate Fourth Amendment rights. Although the Act was designed to address terrorist activity, many of the overly broad provisions may result in surveillance powers applied to large numbers of innocent people. The Act effectively snubs the judicial system in favor of executive power, bypassing the role of the courts in providing an adequate system of checks and balances. In some cases, the new provisions are not even necessary, considering the normal warrant process already authorizes the police to get the desired information. (211)

Efforts to extend more surveillance authority to the government, however, do not end with the PATRIOT Act and its sunset provisions. The government has already sought expanded powers, which the Foreign Intelligence Surveillance Court rejected May 17, 2002 and the government is appealing. (212) Congress is currently considering more bills that would further ease wiretap application processes and protect ISPs when releasing customer information to law enforcement. (213) In the meantime, states such as Georgia (214) and California (215) are working to conform their wiretapping laws to the new federal statutes.

It is therefore imperative that every effort be made to monitor the effects of the PATRIOT Act and ensure adequate privacy protections. After rigorous scrutiny, ill-advised provisions can be repealed, reasonable provisions can be better clarified and understood, and sections lacking either sunset or adequate monitoring provisions can be amended. More specifically, legislative and judicial authorities should:

* revisit the less rigorous wiretap application procedures in favor of Title III wiretap procedures;

* limit law enforcement use of FISA authority that circumvents probable cause requirements of a wiretap application;

* ensure greater judicial oversight so courts are not effectively giving "blank warrants";

* prevent overzealous surveillance of large numbers of people, based on scant evidence of wrongdoing;

* prevent or limit searches where suspects are not present;

* prevent roving wiretaps where officials fail to ascertain that a suspect is actually using the device to be tapped;

* define certain terms such as "routing" and "addressing" and "content" to better clarify what information may and may not be accessed;

* monitor the use of government surveillance techniques, such as Carnivore, to ensure contents of a communication are not seized;

* ensure that law enforcement and the intelligence agencies limit their use of the Act to bona fide investigations of acts of terrorism;

* create a system for punishing government misuse and abuse of surveillance powers; and

* require law enforcement and intelligence agencies to provide comprehensive reports about their use of these new powers

In addition, Internet service providers should:

* revise their privacy policies in their contracts with subscribers to clarify when and how they may disclose information to the government;

* refrain from voluntarily handing over records to law enforcement and allowing government surveillance access without probable cause; and

* put procedures in place to respond to warrants, subpoenas and court orders.

Until provisions are repealed, amended, or sunset, aggressive monitoring will be needed as law enforcement exercise their new powers under the PATRIOT Act. When the sunset provisions come up for renewal in 2005, it will be imperative for lawmakers to assess whether or not law enforcement has made judicious use of its new powers. It will also be important to determine whether the current climate of public opinion, favoring law enforcement over privacy, will have changed. Though many of the provisions in the PATRIOT Act might make sense under the current cloud of terrorism, history shows that citizens will likely question the government's expanded authority once the threat of terrorism fades. (216) As a result, the "privacy pendulum" may swing back, leading to a series of new laws that restrict government snooping and secrecy, such as what occurred with the 1974 Freedom of Information Act amendments, which allowed citizens access to previously secret information. (217)

Until a similar backlash occurs, however, "reams of data on ordinary citizens" will likely be collected, used, and misused. (218) This information about private e-mails and web surfing activity "could be filed away as suspicious, [potentially] coming back to haunt innocent individuals." (219) Hopefully lawmakers will be able to strike a better balance and adopt a more proactive definition of patriotism, vigilantly defending both this country's national security and its civil liberties.

(1.) Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) (amending scattered sections of 18, 47, 50 U.S.C.) [hereinafter PATRIOT Act or Act].

(2.) The Act also "makes important changes to ... immigration, money laundering, and substantive criminal law, among other areas of law." Ronald L. Plesser, James J. Halpert, & Emilio W. Cividanes, USA PATRIOT Act for Internet and Communications Companies, COMPUTER AND INTERNET LAW, Mar. 2002, at 1.

(3.) Nancy Chang, How Does USA PATRIOT Act Affect Bill of Rights?, N.Y. L. J., Nov. 19, 2001, at 1.

(4.) Id.

(5.) Id.

(6.) Theresa M.B. Van Vliet, Anti-Terror Law Will Impact Telecom and Internet Providers, ANDREWS TELECOMM. INDUS. LITIG. REP., Dec. 18, 2001, at 13.

(7.) See A. Jeff Ifrah, Kirby D. Behre, and Larry Barcella, Casting A Wide Net: The Patriot Act Will Ensnare a Lot of Law-Abiding Corporations, LEGAL TIMES, Nov. 19, 2001, at 30.

(8.) Jane Black, Uncle Sam Needs Watching, Too, BUS. WK. ONLINE (Nov. 29, 2001), at www.businessweek.com/bwdaily/dnflash/nov2001/nf20011129_3806.htm. (last visited Mar. 28, 2003) (on file with the Rutgers Computer & Technology Law Journal).

(9.) Id.

(10.) See, e.g., Noelle Straub, USA Patriot Act Powers Prompt Second Look, THE HILL (May 1, 2002), available at http://www.hillnews.com/050102/patriot.shtm (last visited Mar. 28, 2003) (on file with the Rutgers Computer & Technology Law Journal).

(11.) Jennifer C. Evans, Comment, Hijacking Civil Liberties: The USA Patriot Act of 2001, 33 LOY. U. CHI. L.J. 933, 947 (2002). For example, the Committee for Secret Correspondence was created in 1775, and in 1777 Congress passed legislation to make espionage a capital offense. Id.

(12.) Pub. L. No. 65-24, 40 Stat. 217 (1919).

(13.) Evans, supra note 11, at 949.

(14.) Id. at 950-52 (citations omitted). For example, President Franklin D. Roosevelt and FBI Director J. Edgar Hoover encouraged "electronic surveillance of anyone considered to be a threat to national security." Id. at 951 (citations omitted).

(15.) Katz v. United States, 389 U.S. 347 (1967). In this landmark privacy case and the subsequent case, Smith v. Maryland, 442 U.S. 735 (1979), the Supreme Court defined the parameters within which government agencies may engage in telephone monitoring without warrants. Id. Essentially, the Court considers whether the individual had an expectation of privacy that society would deem as reasonable. Id.

(16.) 18 U.S.C. [subsection] 2510-2520 (1994).

(17.) 18 U.S.C. [section] 2518(3).

(18.) For example, wiretap orders are to be granted only when other "investigative procedures have ... failed," and authorities must "minimize the interception of communications not otherwise subject to interception under this chapter." 18 U.S.C. [section] 2518(3)(c)(5). Title III also requires providing to Congress "a full and complete report concerning the number of applications for orders authorizing or approving the interception ... and the number of orders and extensions granted or denied." Id. [section] 2519(3). See Mark Roth, Subpoenas, Search Warrants and Surveillance Orders--Coming to an ISP Near You?, E-COMMERCE L. & STRATEGY, Nov. 2001, at 1.

(19.) 18 U.S.C. [section] 2518(3)(a).

(20.) In 1978, Congress amended Title III to add that "nothing ... shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications." 18 U.S.C. [section] 2511(2)(f).

(21.) A Senate committee learned that CIA agents engaged in warrantless electronic surveillance during the 1960s and early 1970s of thousands of Americans, most notably anti-war activists and black nationalists, who were not suspected of criminal activity or associated with a foreign power. See Sharon H. Rackow, How the USA Patriot Act will Permit Governmental Infringement Upon the Privacy of Americans in the Name of "Intelligence" Investigations, 150 U. PA. L. REV. 1651, 1666 (2002). In 1974, it was revealed that "the FBI and foreign intelligence agencies had spied on over 10,000 U.S. citizens, including Martin Luther King." Electronic Frontier Foundation, EFF Analysis Of The Provisions Of The USA PATRIOT Act That Relate To Online Activities (Oct. 31, 2001), at http://www.eff.org/Privacy/Surveillance/Terrorism_militias /20011031_eff_usa_patriot_analysis.html (last visited Mar. 28, 2003) (on file with the Rutgers Computer & Technology Law Journal).

(22.) 50 U.S.C. [subsection] 1801-1863 (2000).

(23.) Id. [section] 1804(a).

(24.) Id. [section] 1823(a).

(25.) Id. [subsection] 1805(a)(3)(A), 1824(a)(3)(A). "Agent of a foreign power" includes any person who "acts in the United States as an officer or employee ... or ... member of a foreign power," or acts "on behalf of a foreign power" engaging in "clandestine intelligence gathering activities" in the United States, or who "enters the United States under a false ... identity for ... a foreign power." Id. [section] 1801(b)(1)(A), (2)(A), (D). "No United States person may be considered a foreign power or an agent of a foreign power [based] solely upon the ... activities protected by the [F]irst [A]mendment...." Id. [section] 1805(a)(3)(A).

(26.) For example, FISA requires only "probable cause to believe that a person is a foreign power or agent of a foreign power," not a probable cause "that the person is a foreign power or agent of a foreign power." Evans, supra note 11 at 956 n. 147 (citations omitted) (emphasis added).

(27.) 50 U.S.C. [section] 1803(c).

(28.) See, e.g., United States v. Duggan, 743 F.2d 59 (2d Cir. 1984); United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987); United States v. Cavanagh, 807 F.2d 787 (9th Cir. 1987); United States v. Megahey, 553 F. Supp. 1180, (E.D.N.Y. 1982).

(29.) 18 U.S.C. [subsection] 2510-2521, 2701-2710, 3117, 3121-3126 (1994).

(30.) Roth, supra note 18, at 1.

(31.) Id.

(32.) Evans, supra note 11, at 933-34 (citations omitted). These actions also led, for example, to the Antiterrorism and Effective Death Penalty Act of 1996. Id. at 948-49. This law expanded the federal government's ability to combat domestic and international terrorism. Id. at 958 (citations omitted). It primarily addresses immigration law, however, and does not address government intelligence gathering. Id.

(33.) Under CALEA, a search warrant is not required; the government needs only to obtain a court order, or at minimum, any "other lawful authorization." 47 U.S.C. [section] 1002(a)(1)(2) (West Supp. 2001).

(34.) Id. [section] 1002(a)(1).

(35.) Embassies in Nairobi, Kenya, and Tanzania were bombed in 1998. Evans, supra note 11, at 933. In 2000, a suicide bomber hit the USS Cole. Id. at 933-34.

(36.) See infra notes 153-162 and accompanying text for a discussion of Carnivore.

(37.) Ephraim Schwartz, WIRELESS WORLD: FBI Phone Tapping and Locating Cell Phones Making 911 Calls: Is it Privacy or Paranoia?, INFOWORLD, Jan. 15, 2001, at 52.

(38.) Chris Oakes, FBI Eyes Easier In for Wireless, WIRED, July 17, 1998, at http://www.wired.com/news/technology/0,1282,13811,00.html (last visited Mar. 28, 2003) (on file with the Rutgers Computer & Technology Law Journal).

(39.) Privacy advocates, such as the American Civil Liberties Union, the Electronic Privacy Information Center, and the Electronic Frontier Foundation, have complained to Congress and the FCC, arguing that such unrestrained and secret surveillance is a serious threat to civil liberties. James Glave, FCC Sides with FBI on Tapping, WIRED, Aug. 27, 1999, at http://www.wired.com/news/politics/0,1283,21477,00.html. (last visited Mar. 28, 2003) (on file with the Rutgers Computer & Technology Law Journal).

(40.) See Jim McGee, An Intelligence Giant in the Making: Anti-Terrorism Law Likely to Bring Domestic Apparatus of Unprecedented Scope, WASH. POST, Nov. 4, 2001, at A04.

(41.) Plesser et al., supra note 2.

(42.) See PATRIOT Act, supra note 1.

(43.) See Electronic Frontier Foundation, supra note 21.

(44.) Id. "On the Senate side, there was no committee process whatsoever and no opportunity for amendments." Rachel King and Lamar Smith, Symposium: Q: Is Congress Giving Too Much Surveillance Power To Federal Law Enforcement?, INSIGHT ON THE NEWS, Jan. 14, 2002, at 40. In the House, a committee bill was created, but House Republican leadership, after intense administration lobbying, gave in to the administration's request not to bring up the committee bill." Id. As a result, House members "did not have time to read the new version of the bill before voting on it." Id. "Congressional negotiators finalized the language of the PATRIOT Act in a small room in the Capitol building while House and Senate offices were closed due to an anthrax attack." Plesser et al., supra note 2. "Despite this scandalous process, only one senator, Russ Feingold (D-Wis.), and 66 congressmen voted against the bill. Congress utterly failed in its duty to act as a check on the administration's power grab." King and Smith, supra note 40.

(45.) Electronic Frontier Foundation, supra note 21.

(46.) PATRIOT Act [section] 224.

(47.) PATRIOT Act [section] 215 (amending Title V of the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. [subsection] 1801-1863).

(48.) 50 U.S.C. [subsection] 1801-1863 (2000).

(49.) PATRIOT Act [section] 215 (amending FISA [section] 501(a)(1), 50 U.S.C. [section] 1862).

(50.) 50 U.S.C. [section] 1862.

(51.) 50 U.S.C. [section] 1862(a). See Plesser et al., supra note 2.

(52.) PATRIOT Act [section] 215 (amending FlSA [section] 501(a)(2)(B)); Chang, supra note 3.

(53.) PATRIOT Act [section] 215 (amending FlSA [section] 501(c)(1)); Chang, supra note 3.

(54.) Electronic Frontier Foundation, supra note 21. Section 215 does, however, amend 50 U.S.C. [section] 1863 (FISA [section] 502(a), [section] 502(b)(1), and [section] 502 (b)(2)) "to require the Attorney General to fully inform and provide reports to select congressional committees, on a semiannual basis, of all requests for production of 'tangible things,' and to indicate in his report the total number of applications made for court orders in the preceding six-month period and, of those, the number of applications that were granted, modified, or denied." Plesser et al., supra note 2, at 4.

(55.) PATRIOT Act [section] 215(e) (amending FISA [section] 501(c)(2) and [section] 501(d)).

(56.) King & Smith, supra note 44.

(57.) Id.

(58.) PATRIOT Act [section] 224.

(59.) PATRIOT Act [section] 210 (amending 18 U.S.C. [section] 2703(c)(2)).

(60.) 18 U.S.C. [subsection] 2510-2521, 2701-2710, 3117, 3121-3126 (2000).

(61.) 18 U.S.C. [section] 2703(c)(1)(c).

(62.) PATRIOT Act [section] 210 (amending 18 U.S.C. [section] 2703(c)(2)).

(63.) Roth, supra note 18.

(64.) "The means-of-payment category was broader earlier in the legislative process, but was subsequently narrowed to clarify that it encompasses credit card or bank account numbers used as a means of payment for the communication service. Therefore, this provision does not apply to payment information that is stored briefly on a service provider's system or information contained in a 'digital wallet.'" Plesser et al., supra note 2.

(65.) John L. Guerra, Regulatory Watch: Telcos Face Realities of Increased Police Powers, BILLING WORLD & OSS TODAY, Dec. 2001.

(66.) Id.

(67.) Van Vliet, supra note 6.

(68.) Id.

(69.) PATRIOT Act [section] 224

(70.) PATRIOT Act [section] 209 (amending 18 U.S.C. [subsection] 2510(1), (14), 2703(a), (b)).

(71.) Plesser et al., supra note 2, at 3.

(72.) Id.

(73.) Guerra, supra note 65.

(74.) Id. (emphasis added)

(75.) Id.

(76.) Id.

(77.) Id.

(78.) See U.S. v. Smith, 155 F.3d 1051 (9th Cir. 1998), cert. denied, 119 S. Ct. 804 (1999); Plesser et al., supra note 2.

(79.) PATRIOT Act [section] 224.

(80.) PATRIOT Act [section] 211 (amending 47 U.S.C. [section] 551(c)(2)(B), (c)(2)(C), (h)).

(81.) 47 U.S.C. [section] 551 (2000).

(82.) Plesser et al., supra note 2.

(83.) Compare 18 U.S.C. [section] 2703(c)(2), (e) with 47 U.S.C. [section] 551(a)(1), (h)(2).

(84.) Congress created the Cable Act with many goals in mind, including the desire to create "a nationwide standard for the privacy protection of cable subscribers." H.R. REP. No. 98-934, pt. IV, at 76 (1984), reprinted in 1984 U.S.C.C.A.N. 4655, 4713.

(85.) See id. at 78-79.

(86.) According to the legislative history, this includes "specific information about the subscriber, or a list of names and addresses on which the subscriber is included." Id. at 79.

(87.) See 47 U.S.C. [section] 551(h)(2).

(88.) Id.

(89.) Id. [section] 551(h)(1).

(90.) See John Reynolds and Amy Worlton, USA Patriot Act Calls For Privacy Policy Review, METRO. CORP. COUNS., Jan. 2002, at 7.

(91.) Cable companies were concerned because any failure by the cable operator to comply with the Cable Act restrictions could result in liability to the affected customer for actual damages, punitive damages, and attorney's fees. 47 U.S.C. [section] 551(f).

(92.) 36 F. Supp. 2d 430 (D. Mass. 1999).

(93.) 81 F. Supp. 2d 1103 (D. Kan. 2000).

(94.) Reynolds & Worlton, supra note 90.

(95.) "One category of Internet subscriber information that still remains subject to the advance notice provisions of the Cable Act is 'records revealing cable subscriber selection of video programming from a cable operator.'" Plesser et al., supra note 2.

(96.) PATRIOT Act [section] 224.

(97.) PATRIOT Act [section] 213(b) (amending 18 U.S.C. [section] 3103(a)).

(98.) King & Smith, supra note 44.

(99.) PATRIOT Act [section] 213(b)(3) (amending 18 U.S.C. [section] 3103(a)). Delayed notification is not new; the ECPA "granted the government the authority to delay notification for search of some forms of electronic communications that are in the custody of a third party. Section 213 statutorily extends the ability of law enforcement to delay the notice to any physical or electronic search with a showing that the notice would create an 'adverse result.'" John Podesta, USA Patriot Act: The Good, the Bad and the Sunset, INTERNET CONNECTION, June 2002, at 1, LEXIS, News Library.

(100.) Wilson v. Arkansas, 514 U.S. 927, 929 (1995).

(101.) Chang, supra note 3.

(102.) King & Smith, supra note 44.

(103.) Id

(104.) Id.

(105.) PATRIOT Act [section] 224.

(106.) See Straub, supra note 10.

(107.) 50 U.S.C. [subsection] 1801-1863 (2000).

(108.) American Civil Liberties Union, How The USA-Patriot Act Limits Judicial Oversight of Telephone And Internet Surveillance, available at http://www.aclu.org/congress/1102301g.html (last visited Mar. 28, 2003) (on file with the Rutgers Computer & Technology Law Journal). (109.) King & Smith, supra note 44.

(110.) American Civil Liberties Union, supra note 108.

(111.) Id.

(112.) See Electronic Frontier Foundation, supra note 21.

(113.) PATRIOT Act [section] 218 (amending 50 U.S.C. [section] 1804(a)(7)(B)).

(114.) Electronic Frontier Foundation, supra note 21; see also King & Smith, supra note 44 (FISA authorized wiretapping "when gathering foreign-intelligence information was the primary purpose of the surveillance").

(115.) American Civil Liberties Union, supra note 108.

(116.) "To guard against abuse, the attorney general had to certify to a court that the 'primary purpose' of the FISA wiretap was to listen in on a specific foreign spy or terrorist. In negotiating the new legislation, the Bush administration asked for a lower standard for approval--changing the words 'primary purpose to 'a purpose.' This would allow people merely suspected of working with terrorists or spies to be wiretapped. The debate over this wording was one of the fiercest surrounding the new anti-terrorism law. Senate negotiators settled on the phrase 'a significant purpose,' which will still allow the Bush administration the leeway it wants." McGee, supra note 40.

(117.) 629 F.2d 908 (4th Cir. 1980).

(118.) Id. at 915 (emphasis added). The court explained that "once surveillance becomes primarily a criminal investigation, the courts are entirely competent to make the usual probable cause determination, and because, importantly, individual privacy interests come to the fore and government foreign policy concerns recede when the government is primarily attempting to form the basis for a criminal prosecution." Id.

(119.) See United States v. Brown, 484 F.2d 418 (5th Cir. 1973); see also United States v. Butenko, 494 F.2d 593 (3d Cir. 1974).

(120.) Zweibon v. Mitchell, 516 F.2d 594, 614 (D.C. Cir. 1975).

(121.) King & Smith, supra note 44.

(122.) Id.; Electronic Frontier Foundation, supra note 21.

(123.) Susan Herman, The USA Patriot Act and the USA Department of Justice--Losing Our Balances?, JURIST, Dec. 3, 2001, available at http://jurist.law.pitt.edu/forum/forumnew40.htm (last visited Mar. 28, 2003) (on file with the Rutgers Computer & Technology Journal). In the last 22 years, only one application out of thousands has been denied. Rackow, supra note 21, at 1675. Between 1996 and 2000, all 4,275 FISA warrant applications were granted. Herman, supra note 123.

(124.) Rackow, supra note 21, at 1681-82.

(125.) King & Smith, supra note 44. "In such prosecutions, the target of FISA surveillance cannot obtain discovery of the FISA court-order application because it is a secret, and therefore cannot effectively challenge the legality of a search or wiretap order." Id.

(126.) Carrie Kirby, Watchdogs Say Terror Bill Goes Too Far, S. F. CHRON., Oct. 25, 2001, at D1.

(127.) Id.

(128.) PATRIOT Act [section] 224.

(129.) Id. [section] 216 (amending 18 U.S.C. [subsection] 3121, 3123, 3124, 3127).

(130.) Pen registers record telephone numbers of outgoing calls. See 18 U.S.C. [section] 3127(3).

(131.) Trap and trace devices record telephone numbers from which incoming calls originate. See 18 U.S.C. [section] 3127(4).

(132.) Black, supra note 8.

(133.) Reynolds & Worlton, supra note 90. "Although the definition of a pen/trap device in the ECPA plainly applied by its terms to a device attached to a telephone line, the Federal Bureau of Investigation informed Congress during hearings in September 2000 that it had been routinely obtaining pen/trap orders to access 'computer network-based addressing and transactional information.' The FBI took the position that the pen/trap provisions could be applied by analogy to computer communications." Roth, supra note 18.

(134.) PATRIOT Act [section] 216 (amending 18 U.S.C. [section] 3127(3), (4)).

(135.) Id. (amending 18 U.S.C. [section] 3123(a)(1)).

(136.) Id. (amending 18 U.S.C. [section] 3121(c)).

(137.) See Roth, supra note 18. Also, "[i]nstead of referring to a 'device' that is 'attached' to a 'line, the revised provisions refer to the device being 'attached or applied,' and the definition of a 'device' in 18 U.S.C. [section] 3127 is amended to include a 'process' (such as a software routine)." Id.

(138.) See id.

(139.) Louis Trager, Patriot Acts E-Mail and Web Snooping Impact Debated, WASH. INTERNET DAILY, Feb. 4, 2002, at Vol. 3, No. 23.

(140.) Id.

(141.) Id.

(142.) Id. According to John Elwood, a counselor in the Department of Justice Criminal Division, "the traditional wiretap framework for years had allowed ready access to equally detailed and revealing information in the form of a subject's voicemail commands." Id. Moreover, Christopher Painter, Justice Department chief for computer crime and intellectual property, says considerable personal information is always available through a grand jury subpoena. Id.

(143.) PATRIOT Act [section] 216 (amending 18 U.S.C. [section] 3121(c)).

(144.) King & Smith, supra note 44.

(145.) Roth, supra note 18.

(146.) See 18 U.S.C. [section] 2510(8) (the term content "includes any information concerning the substance, purport, or meaning of [the] communication").

(147.) Plesser et al., supra note 2.

(148.) Roth, supra note 18. This is also stated in the Justice Department's field guide. See Department of Justice, Field Guidance on New Authorities That Relate to Computer Crime and Electronic Evidence Enacted in the 2001 Anti-Terrorism Legislation, available at http://www.cybercrime.gov/PatriotAct.html (last visited Mar. 28, 2003) (on file with the Rutgers Computer & Technology Law Journal).

(149.) American Civil Liberties Union, supra note 108.

(150.) Kirby, supra note 126.

(151.) King & Smith, supra note 44 (emphasis added).

(152.) Id.

(153.) Id. By late 2001, "[i]n approximately 25 such cases, the FBI reported [that] the issuance of the order resulted in the deployment of the controversial FBI 'Carnivore' technology." Roth, supra note 18.

(154.) Chang, supra note 3, at 4.

(155.) King & Smith, supra note 44.

(156.) Roth, supra note 18. See also Statement for the Record of Donald M. Kerr (Senate Judiciary Committee, Sept. 6, 2000), available at http://www.fbi.gov/congress/congress00/kerr090600.htm (last visited Mar. 28, 2003) (on file with the Rutgers Computer & Technology Law Journal).

(157.) Roth, supra note 18. (citations omitted). See also Peter J. Georgiton, The FBI's Carnivore: How Federal Agents May Be Viewing Your Personal E-Mail and Why There Is Nothing You Can Do About It, 62 OHIO ST. L.J. 1831 (2001).

(158.) Electronic Information Privacy Center (EPIC), FBI Memo on "FISA Mistakes" (Apr. 5, 2000), at http://www.epic.org/privacy/carnivore/fisa.html (last visited Mar. 28, 2003) (on file with the Rutgers Computer & Technology Law Journal). An internal FBI e-mail message dated April 5, 2000, explained that the Carnivore "software was turned on and did not work correctly." The surveillance system captured not only the electronic communications of the court-authorized target, "but also "picked up E-Mails on non-covered" targets.". Id.

(159.) Trager, supra note 139.

(160.) King & Smith, supra note 44. See Kevin Galvin, Rights And Wrongs: Why New Law-Enforcement Powers Worry Civil Libertarians, SEATTLE TIMES, Dec. 6, 2001, at A3 ("It's impossible to obtain the address information without seeing the content of the data.").

(161.) Trager, supra note 139. "Section 216 directs law enforcement to file an ex parte and in camera report with the court whenever it uses a 'Carnivore' device.... The report would identify, inter alia, 'the configuration of the device at the time of its installation' and 'any information which has been collected by the device.' The existence of these reports may help to inform future public policy debates regarding the propriety of compelling ISPs to install Carnivore devices." Plesser et al., supra note 2, at 5. This provision does not sunset. PATRIOT Act, supra note 1, [section] 224.

(162.) King & Smith, supra note 44.

(163.) Roth, supra note 18.

(164.) Id.

(165.) Id.

(166.) Roth, supra note 18 (citing People v. Bialostok, 80 N.Y.2d 738 (1993)).

(167.) American Civil Liberties Union, supra note 108.

(168.) PATRIOT Act [section] 216 (amending 18 U.S.C. [section] 3123(a)(1)).

(169.) American Civil Liberties Union, supra note 108.

(170.) PATRIOT Act [section] 224(a)

(171.) Reynolds & Worlton, supra note 90, at 7.

(172.) Louis Trager, Industry Executive Says Patriot Act Gives ISPs in Murky Duties, WASH. INTERNET DAILY, Apr. 19, 2002. "Section 222 says the [A]ct isn't intended to impose additional technical obligations on ISPs ... To date, carriers have been obliged to accept gov[ernmen]t funds or equipment needed to perform wiretaps." Id.

(173.) Reynolds & Worlton, supra note 90.

(174.) Id.

(175.) PATRIOT Act [subsection] 216, 220 (amending 18 U.S.C. [subsection] 2703, (d), 2711), 216.

(176.) 18 U.S.C. 3123(a).

(177.) PATRIOT Act [section] 216 (amending 18 U.S.C. [subsection] 2711(3), 3127(2)(A)); see Department of Justice, supra note 148.

(178.) American Civil Liberties Union, supra note 108.

(179.) Id.

(180.) Id.

(181.) American Civil Liberties Union, USA Patriot Act Boosts Government Powers While Cutting Back on Traditional Checks and Balances, at http://www.aclu.org/congress/1110101a.html (last visited Mar. 28, 2003) (on file with the Rutgers Computer & Technology Law Journal).

(182.) Id.

(183.) Id.

(184.) Id.

(185.) PATRIOT Act [section] 224.

(186.) Plesser, et. al., supra note 2, at 2. Such taps are typically used when a suspect goes from phone to phone in an effort to prevent his or her calls from being wiretapped. Id.. Roving tap authority can also be used "to intercept the e-mail communications of a suspect who [often] changes Internet accounts." Id.

(187.) American Civil Liberties Union, supra note 108 (emphasis added).

(188.) Id.

(189.) PATRIOT Act [section] 206 (amending 50 U.S.C. [section] 1805(c)(2)(B)).

(190.) King & Smith, supra note 44.

(191.) Id.

(192.) 18 U.S.C. [section] 2518(12).

(193.) King & Smith, supra note 44.

(194.) Id.

(195.) Electronic Frontier Foundation, supra note 21.

(196.) Id.; Herman, supra note 123.

(197.) PATRIOT Act [section] 224.

(198.) Kirby, supra note 126.

(199.) PATRIOT Act [section] 212 (amending 18 U.S.C. [section] 2702)).

(200.) Id. (amending 18 U.S.C. [section] 2702(b)(6)(C)).

(201.) Id. (amending 18 U.S.C. [section] 2702(c)).

(202.) See Trager, supra note 172.

(203.) PATRIOT Act [section] 217 (amending 18 U.S.C. [subsection] 2510, 2511(2)).

(204.) Plesser et al., supra note 2, at 5.

(205.) Roth, supra note 18.

(206.) Id.

(207.) See Plesser et al., supra note 2.

(208.) Trager, supra note 172.

(209.) As Litt comments:

   Early forms of the legislation did contain an ambiguous
   definition of the term 'computer trespasser.' However, the bill
   as finally passed specifically excludes anyone 'known by the
   owner or operator of the protected computer to have an
   existing contractual relationship with the owner or operator of
   the protected computer for access to all or part of the protected
   computer.' Thus, an ISP subscriber or an employee does not
   become a 'trespasser' whose communications can be
   monitored by the government simply by violating terms of use
   or policies.

Robert S. Litt, Patriot Act Has Its Limits, LEGAL TIMES, Dec. 3, 2001, at 53.

(210.) PATRIOT Act [section] 224.

(211.) See King & Smith, supra note 44.

(212.) See In re All Matters Submitted to the Foreign Intelligence Surveillance Court, available at http://www.epic.org/privacy/terrorism/fisa/fisc_opinion.html (last visited Mar. 28, 2003) (on file with the Rutgers Computer & Technology Law Journal).

(213.) "A provision of the intelligence authorizations bill (HR-2883) ... would amend federal wiretap law ... by making roving wiretaps easier, ... allow[ing] authorities to not have to list the location of the device that they seek to tap if they can't specify its location." Patrick Ross, Cybersecurity Bills Proliferate on Hill, WASH. INTERNET DAILY, Dec. 17, 2001, at []. Also, the Cyber Security Enhancement Act of 2001, "[s]ection 102 of the HR-3482 by Rep. Smith (R-Tex.) would protect any ISP surrendering e-mails, log-in history and Web site traffic to law enforcement 'if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person' is imminent, but notes that cooperation in that scenario is mandatory for the ISP." Id.

(214.) "'Georgia's Support of the War on Terrorism Act of 2002' would make Georgia wiretapping rules match those in federal law, including ... part of the ... PATRIOT Act. One key provision would allow state authorities to share information gleaned from wiretaps with other government agencies, both federal and state." Rachel Ramos, Share and Share Alike: Wiretap Bill Would Align Ga., U.S. Laws, FULTON COUNTY DALLY REP., Feb. 22, 2002, at Vol. 113, No. 37.

(215.) "Governor Gray Davis is calling for expanded authority to wiretap Californians' phones and e-mail in the name of protecting against terrorism.... [T]he legislation Davis seeks is similar to the PATRIOT Act.... New York has adopted a similar statute, and proposals are pending in Arizona and Washington state." Dan Morain, Davis to Ask for Broader Wiretaps, L.A. TIMES, Jan. 8, 2002, at A1.

(216.) For example, when the country was "divided over the Vietnam War, many citizens supported increased surveillance as a way to maintain order." Black, supra note 8. Yet after Watergate and other events, people were outraged over the extent to which surveillance was taking place. Id." "American history is rich with [other] examples of civil liberties curtailed in times of crisis. The Alien and Sedition Acts made criticizing the government a treasonous offense in the 18th Century. Abraham Lincoln suspended habeas corpus during the Civil War, [and] [m]ore than 100,000 [Japanese] Americans were incarcerated during World War II. [Such] steps were rescinded when the crises passed." Galvin, supra note 160.

(217.) Black, supra note 8.

(218.) Id.

(219.) Id.

Laurie Thomas Lee, Ph.D. Mass Media, Michigan State University, 1993; M.A. University of Iowa, 1983. Dr. Lee is an Associate Professor in the Department of Broadcasting at the University of Nebraska-Lincoln. Her primary research interests include the law and economics of new technologies such as the Internet, cable and telephony, with an emphasis on privacy law.