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IMPLEMENTATION OF THE USA PATRIOT ACT:

CRIME, TERRORISM AND THE AGE OF TECHNOLOGY

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

APRIL 21, 2005

Serial No. 109–18

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

ADAM SMITH, Washington 

CHRIS VAN HOLLEN, Maryland

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California 

MARK GREEN, Wisconsin 

TOM FEENEY, Florida 

STEVE CHABOT, Ohio 

RIC KELLER, Florida 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

ROBERT C. SCOTT, Virginia 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

JAY APPERSON, Chief Counsel 

ELIZABETH SOKUL, Special Counsel on Intelligence 

and Homeland Security 

JASON CERVENAK, Full Committee Counsel 

MICHAEL VOLKOV, Deputy Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III)

C O N T E N T S 

APRIL 21, 2005

OPENING STATEMENT 

Page 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 1

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 2

WITNESSES 

The Honorable Laura H. Parsky, Deputy Assistant Attorney General, U.S. 

Department of Justice 

Oral Testimony ..................................................................................................... 4

Prepared Statement ............................................................................................. 7

Mr. Steven M. Martinez, Deputy Assistant Director, Cyber Division, Federal 

Bureau of Investigation 

Oral Testimony ..................................................................................................... 27

Prepared Statement ............................................................................................. 29

Mr. Jim Dempsey, Executive Director, Center for Democracy and Technology 

Oral Testimony ..................................................................................................... 32

Prepared Statement ............................................................................................. 34

Mr. Peter Swire, Professor of Law, Ohio State University 

Oral Testimony ..................................................................................................... 38

Prepared Statement ............................................................................................. 41

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Robert C. Scott, a Representative in 

Congress from the State of Virginia, and Ranking Member, Subcommittee 

on Crime, Terrorism, and Homeland Security ................................................... 75

Prepared Statement of the Honorable Maxine Waters, a Representative in 

Congress from the State of California ................................................................ 76

Submission by Peter Swire entitled ‘‘The System of Foreign Intelligence Surveillance Law,’’ 72 George Washington Law Review 1306 (2004), available 

at http://papers.ssrn.com/sol3/papers.cfm?abstractl ....................................

id=586616 ................................................................................................................. 77

(1)

IMPLEMENTATION OF THE USA PATRIOT 

ACT: CRIME, TERRORISM AND THE AGE OF 

TECHNOLOGY 

THURSDAY, APRIL 21, 2005

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 10:03 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Howard 

Coble (Chair of the Subcommittee) presiding. 

Mr. COBLE. Good morning, ladies and gentlemen. Good to have 

you all with us for our oversight hearing on the implementation of 

the USA PATRIOT Act, sections 209, 217, and 220 of the act that 

address crime, terrorism, and the age of technology. 

Our Nation has a dependency problem, one that we need to nurture and protect. That dependency is on technology. Computers and 

related technology have improved every aspect of our lives, our 

health care, our education, our security, just to name a few. 

This same technology also aids those who threaten our Nation 

and it facilitates terrorists and criminals alike. At the stroke of a 

key someone can cause millions of dollars of damage to our economy or shut down 911 systems of our emergency responders. 

The threat has grown with the benefits of and dependency upon 

technology. Now, after September 11 attacks, the risks are greater. 

Even prior to the attacks the Judiciary Subcommittee on Crime, 

Terrorism, and Homeland Security had been working on legislation 

to improve Federal law to protect the Nation from cybercrime and 

cyberterrorism. 

In an almost prophetic effort this Subcommittee held three hearings on the growing threat of cybercrime and cyberterrorism in the 

summer of 2001, and was in the process of drafting legislation to 

meet those threats when the 9/11 attacks occurred. 

These hearings highlighted that the Border Patrol and checkpoints at our airports and shipping ports cannot protect against 

cybercrime and terrorism. 

This type of crime is borderless, knows no restraints, and can 

substantially harm the Nation’s economy and our citizens. 

To protect our privacy and our safety, law enforcement must be 

able to deal with new technology and the associated challenges. 

The borderless nature of cyberspace causes jurisdictional and inVerDate 0ct 09 2002 09:14 Jun 27, 2005 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\042105\20710.000 HJUD1 PsN: DOUGA
2

vestigative problems for law enforcement and facilitates often times 

criminal activity. 

The law enforcement officials and private representatives at 

these hearings agreed that the criminal law needed to be updated 

and clarified. 

In the PATRIOT Act, this Committee incorporated H.R. 2915, the 

legislation produced by the Subcommittee and then Chairman 

Lamar Smith in the summer of 2001. The PATRIOT Act updated 

criminal law to address the new challenges. These updates were 

designed to help law enforcement assess whether unlawful conduct 

is the result of criminal activity or terrorist activity and to respond 

appropriately. 

The hearing today will discuss sections 209 that deals with 

stored electronic communications; 217 that addresses computer 

trespassers; and 220 that updates the service of search warrants 

for electronic communications. 

These sections are set to expire on December 31 of this year. 

I look forward to hearing from the testimonies from the witnesses, and now I’m pleased to recognize the distinguished Gentleman from Virginia, the Ranking Member, Mr. Bobby Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. And thank you again for 

scheduling another hearing on the USA PATRIOT Act. I think it’s 

important that we have these hearings. I think we did a good job 

as a Committee when we passed the PATRIOT Act. Unfortunately, 

our work somehow dissolved between the Committee and the floor 

of the House. But we have taken in one of the points of this sunset 

which was to give us an opportunity to review our work product, 

and these hearings are certainly extremely important. 

This hearing is about the investigation and prosecution of crimes 

through use of electronic evidence, section 209 of the act references 

seizure of voice mail messages pursuant to a warrant. However, 

that section authorizes access to much more than just voice mail 

and authorizes access through ways other than warrants, such as 

administrative, grand jury, and court issued subpoenas. And under 

the appropriate circumstances, there can also be the sneak and 

peak situations where they ate warrants, court subpoenas, or administrative subpoenas. So we’re talking about a section that is not 

only misleading relative to the breadth of police powers that authorizes, but a title that is deceptive as to the extraordinary nature 

of those powers. 

Quite frankly, Mr. Chairman, the more I review the extent of 

these powers that we have extended to law enforcement through 

provisions such as section 209, the more I am pleased with our decision to provide for a sunset on some of those powers in order that 

we may review in earnest what we have done so that law enforcement authorities who get access to our private information pursuant to these powers will be aware that we are reviewing their actions. 

This is a section whose original purpose was to protect or electronic data against intrusion. Now, we see a big loophole that we 

carved out for the purpose of law enforcement access and the limitations on traditional methods of holding law enforcement accountable, such as prior notice for the right to quash and oversight of 

3

a court through return reports to the court within a certain number of days. 

And so I’m convinced that the sunset review in this area is absolutely essential to our oversight responsibilities to the public. 

This is especially true in the areas of electronic and general technology given the growing impact of technology to our society. I have 

the same concerns about section 217, which allows an ISP to give 

law enforcement wide latitude to look at private electronic communications without court oversight or review. 

It’s one thing to call law enforcement to look at a trespass that 

is occurring. But it’s another thing to call on law enforcement to 

look to see if anything suspicious is going on prior to a trespass actually occurring. 

And while I can understand the efficiency of certain arguments 

for a nationwide search warrant authority in the area of electronic 

communications, I’m also concerned with the sufficiency of the notice and the right to challenge an oversight of such warrants. 

Now for law enforcement, I think it’s important to note that I 

think these powers should be available in appropriate circumstances. So I’m not calling for a sunset of those powers. However, the public’s protection of their privacy as well as their safety, 

I’m saying that we need to look more precisely at the notice to 

oversight and reporting requirements for these powers and make 

appropriate adjustments. 

We should also continue this kind of oversight through sunsets 

where we have to periodically look at the use of these powers in 

an arena of evolving technologies and where law enforcement is 

aware that the use of these powers will need to be scrutinized and 

justified. 

And so, Mr. Chairman, I look forward to the testimony of our 

witnesses on how we might best do that and working with you on 

implementing our recommendations. 

Mr. COBLE. I thank you, Mr. Scott. 

Lady and gentlemen, it’s the practice of the Subcommittee to 

swear in all witnesses appearing before us. So if you all would 

please stand and raise your right hands 

[Witnesses sworn.] 

Mr. COBLE. Let the record show that each of the witnesses answered in the affirmative. You may be seated. 

We have a very distinguished panel today. And I will introduce 

them before we take testimony. 

Our first witness is Ms. Laura H. Parsky, the Deputy Assistant 

Attorney General of the Criminal Division at the United States Department of Justice. In addition to serving at the Department of 

Justice, Ms. Parsky has served as Director of International Justice 

and Contingency Planning at the National Security Council. She 

was graduated from Yale University and obtained her law degree 

from Boalt Hall School of Law at the University of California at 

Berkeley. Following law school, Ms. Parsky clerked for the Honorable D. Lowell Jensen of the United States District Court for the 

Northern District of California. 

Our second witness today is Mr. Steven Martinez, Deputy Assistant Director for the Cyber Division of the FBI. Prior to beginning 

his current position, Mr. Martinez served in many capacities within 

4

the FBI, including managing the counter terrorism and counter intelligence efforts during the staging and commencement of Operation Iraqi Freedom. Mr. Martinez is a graduate of St. Mary’s College of California and received a master’s degree from the University of California at Berkeley. 

Our next witness is Mr. Jim Dempsey, Executive Director of the 

Center for Democracy and Technology. Prior to joining the Center, 

Mr. Dempsey was a Deputy Director of the Center for National Security Studies and also served as Assistant Counsel to the House 

Judiciary Committee’s Subcommittee on Civil and Constitutional 

Rights. Mr. Dempsey is a graduate of Yale University and the Harvard Law School. 

Our final witness today is Mr. Peter Swire, Professor of Law at 

the Ohio State University’s Moritz College of Law. Previously, Mr. 

Swire served in the Clinton Administration as Chief Counselor for 

Privacy in the Office of Management and Budget. Professor Swire 

is a graduate of Princeton University and the Yale Law School. 

After graduating from law school, he clerked for Judge Ralph K. 

Winter, Jr., of the United States District Court—strike that—of the 

United States Court of Appeals for the Second Circuit. 

Folks, it’s mighty good to have all of you with us. As you all have 

been previously informed, we operate under the 5-minute rule here, 

and you will see the panels before you at the desk when amber 

light appears that is your notification that time is elapsing rapidly. 

And when the red light appears, the 5 minutes have expired. And 

have furthermore imposed the 5-minute rule against ourselves as 

well. So when we examine you, if you all could be terse, we would 

be appreciative of that. 

Ms. Parsky, why don’t you start us off? 

TESTIMONY OF THE HONORABLE LAURA H. PARSKY, DEPUTY 

ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE 

Ms. PARSKY. Thank you. Good morning, Mr. Chairman, Ranking 

Member Scott and honorable Members of the Subcommittee. 

It is my pleasure to appear before you to discuss sections 209, 

217, and 220 of the PATRIOT Act, provisions that have authorized 

our laws to keep pace with new technologies. These provisions have 

made commonsense changes that have harmonized the treatment 

of similar situations, that have eliminated unnecessary and inefficient processes, and that have given back to victims the rights they 

deserve. 

Together, they are a significant step forward in meeting the challenges of investigating and prosecuting crime in the 21st century. 

Our world has changed in dramatic ways in recent years. On the 

one hand, as September 11th made tragically clear, we face the 

threat of terrorism on a scale that was previously unimaginable. 

On the other hand, we have experienced tremendous technological advancement that has given us modern wonders like the 

Internet. It is because of both of these developments that the PATRIOT Act is vital to our country’s safety. 

As the world changes, so must our laws. We cannot go back to 

the days before September 11th, and we cannot turn back the clock 

5

of the digital age. Likewise, we cannot regress to outdated laws 

that defy reason in today’s world. 

Sections 209, 217, and 220 are just the kinds of commonsense 

changes that we need to keep pace with technology. Prior to the 

PATRIOT Act, voice mails were subject to burdensome rules designed for ongoing access to live communications rather than those 

rules for a single access to other similar types of stored communications. 

In fact, it was easier for law enforcement to get a warrant to go 

into a person’s home and listen to messages on that person’s answering machine than it was to obtain voice mail messages left—

stored with a third party. 

Section 209 fixed this inconsistency by making the rules for 

stored voice mail more consistent with those for other types of 

stored messages, such as electronic mail. 

Section 217 also addresses new technology, the rise of computer 

networks, such as the Internet. Section 217 makes clear that Federal law will not shield a person who trespasses on the computer 

system of another. Section 217 puts the power to decide who may 

enter property back where it belongs: in the hands of the property 

owner, just as has always been the case for homeowners. 

Finally, section 220 recognizes that today’s modern communications technologies make it possible for records relating to an investigation in a particular jurisdiction to be stored in a distant jurisdiction, or in many cases in several distant jurisdictions. 

Rather than sending investigators all over the country to explain 

the same set of facts over and over again to different prosecutors 

and different judges, section 220 allows the investigators and prosecutors who are most familiar with the case to obtain authorization 

to gather electronic records from a single judge in their own district, who is also most familiar with the facts of the case, just as 

has always been the case with other records subject to grand jury 

subpoenas. This provision just makes practical sense in today’s 

world of electronic evidence. 

In the three and a half years since Congress passed these provisions of the PATRIOT Act by overwhelming bipartisan majorities, 

we’ve had the opportunity to see these provisions in action. We 

have seen the modern tools Congress authorized through passage 

of the PATRIOT Act dramatically improve law enforcement’s ability to protect the safety and security of the American people. 

We have used these tools to disrupt terrorist networks and to 

prevent terrorist attacks, to bring down international drug conspiracies, and to rescue children in imminent danger. 

Most significantly we have prevented another terrorist attack 

from striking us here at home. These are the facts, not fears. 

The PATRIOT Act has made law enforcement more effective and 

more efficient. All this has been done without impacting any of the 

constitutional protections that we as Americans hold dear. 

It is in this context that these tools must be evaluated. It is this 

record of accomplishments that should be first and foremost in your 

minds. 

We cannot go back. If Congress fails to reauthorize the PATRIOT 

Act, we will revert to old rules that hamstring law enforcement 

6

with inefficient processes and unnecessary delays in investigating 

21st century crime. 

The law would once again treat similar services differently without good cause, and, worse, the law would protect criminals at the 

expense of their victims’ rights. If these provisions are not renewed, 

law enforcement will be less efficient and less effective in combating not only terrorism, but other serious offenses, such as cyber 

crime, child exploitation and kidnapping. 

Our experience over the past three and a half years has proven 

the utility and rationality of these modernizations of our laws. In 

light of the very real threats we face today, we cannot afford to go 

back to when technology was outpacing law enforcement’s tools. 

Therefore, I ask that you continue to move our laws forward by 

reauthorizing sections 209, 217, and 220 of the PATRIOT Act. The 

Department of Justice appreciates this Subcommittee’s leadership 

in making sure that our country’s laws meet the challenges of 

today and of tomorrow. 

Thank you for the opportunity to testify today and for your continuing support. I am happy to try to answer any questions you 

may have. 

[The prepared statement of Ms. Parsky follows:]

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PREPARED STATEMENT OF LAURA H. PARSKY


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Mr. COBLE. Thank you, Ms. Parsky. 

Mr. Martinez? 

TESTIMONY OF STEVEN M. MARTINEZ, DEPUTY ASSISTANT DIRECTOR, CYBER DIVISION, FEDERAL BUREAU OF INVESTIGATION 

Mr. MARTINEZ. Good morning, Mr. Chairman, Ranking Member 

Scott, and Members of the Subcommittee. 

My name is Steven Martinez. I’m the Deputy Assistant Director 

of the FBI’s Cyber Division. The primary mission of the Cyber Division is to protect the American public against a host of significant 

and potentially deadly high-tech crimes. 

The uses of technology in our society are innumerable and their 

value immeasurable. The state of technology has been advancing 

rapidly over the past 20 years, much of it to the benefit of people 

living in all corners of the world. 

Unfortunately, the picture is not always so bright. 

Technology has also been used to harm people, while offering a 

particularly effective escape route. In this digital age, crimes can 

and do occur within seconds without the perpetrator ever getting 

anywhere physically close to the victim. 

In such a setting, law enforcement must be equipped with the investigative tools necessary to meet, locate, and incapacitate the 

growing threat. 

With this background in mind, I want to thank you for the opportunity to appear before you today to discuss certain sections of the 

USA PATRIOT Act which are scheduled to expire at the end of this 

year, specifically sections 209, 217, and 220. Going in numerical 

order, allow me to start with section 209. 

Section 209 permits law enforcement officers to seize voice mail 

with a search warrant rather than a surveillance, or title III order. 

The importance of this provision is best understood in the context 

of how often terrorists and other criminals rely on technology to 

relay their plans to each other instead of risking face to face inperson meetings. 

Section 209 provides a very good example of how the USA PATRIOT Act simply updated the law to reflect recent technological 

developments. The drafters of the act determined that obtaining 

voicemail stored on a third party’s answering system is more similar to obtaining voicemail stored on a home answering machine, 

which requires a search warrant, more so than it is to monitoring 

somebody’s telephone calls, which requires a title III order. 

In passing this portion of the act, Congress made the statutory 

framework technology-neutral. Privacy rights are still well accounted for, since the section 209 allows investigators to apply for 

and receive a court-ordered search warrant to obtain voicemail pursuant to all of the pre-existing standards for the availability of 

search warrants, including a showing of probable cause. 

With privacy rights left firmly intact, there is a distinct advantage to the public’s safety when law enforcement can obtain evidence in a manner that is quicker than the title III process. 

I would like to move next to section 217, the Hacker Trespasser 

Exception. Like section 209 before it, section 217 also makes the 

law technology-neutral. 

28

Section 217 places cyber-trespassers—those who are breaking 

into computers—on the same footing as physical intruders. Section 

217 allows the victims of computer-hacking crimes voluntarily to 

request law enforcement assistance in monitoring trespassers on 

their computers. 

Just as burglary victims have long been able to invite officers 

into their homes to catch the thieves, hacking victims can now 

allow law enforcement officers into their computers to catch cyberintruders. 

Think for a moment how odd it would be if a homeowner yelled 

out to a police officer ‘‘Hey, there’s a burglar in my house right 

now, help!’’, only to have the police respond, ‘‘Sorry, I have to apply 

for a court order first, try not to scare him off.’’ The homeowner 

would be dumbfounded; the burglar would be long gone by time the 

police returned. This, in essence, is what was occurring prior to the 

PATRIOT Act. 

It can be said that section 217, in a very significant way, enhances privacy. The essence of the section—to help catch hackers—

serves a vital function in the FBI’s ability to enforce data privacy 

laws. Hackers have no respect for your privacy or mine. 

There has been an outpouring of concern from the American public to protect them from identity theft and to ensure that their personal records are secure. Congress has responded with a powerful 

array of laws that are designed to impose serious consequences on 

computer hackers. However, if law enforcement does not have the 

ability to quickly spot and then locate hackers, then the victim toll 

will mount and only hackers themselves, remaining anonymous, 

will be left with privacy. 

The FBI understands the importance of preventing criminals 

from stealing and selling our information, and we are resolved to 

catch those who do. Section 217 is of enormous help in this regard. 

Lastly, I would like to turn to section 220. Section 220 enables 

Federal courts—with jurisdiction over investigation—to issue a 

search warrant to compel the production of information, such as 

unopened e-mail, that is stored with a service provider located outside their district. 

Now, for example, a judge with jurisdiction over a kidnapping investigation in Pittsburgh can issue a search warrant for e-mail 

messages that are stored on a server in California. As a result, investigators in Pennsylvania can ask the judge most familiar with 

the investigation to issue a warrant rather than having to ask an 

Assistant United States Attorney in California who’s unfamiliar 

with the case, to ask a district judge in California, who also is unfamiliar with the case, to issue the warrant. 

Lest you think this is merely a hypothetical example, it’s not. 

Using section 220, our FBI office in Pittsburgh was able to obtain 

a warrant for information residing on a computer in California that 

ultimately led to the rescue of a teenage girl who was being sexually tortured in Virginia while being chained to a wall in somebody’s basement. 

The man who held her hostage is now in prison, serving close to 

20 years. The girl’s life was saved. 

29

Other FBI Field Offices also have repeatedly stated that section 

220 has been very beneficial to quickly obtain information required 

in their investigations. 

Mr. Chairman and Members of the Committee, let me conclude 

my prepared remarks by saying that the provisions of the USA PATRIOT Act I have discussed today have proven significant to a 

number of our successes and I have every reason to believe that 

the need to retain these provisions in the future is also significant. 

By responsibly using the statutes provided by Congress, the FBI 

has made substantial progress in its ability to enforce the law and 

protect lives, while at the same time protecting civil liberties. 

Thank you. 

[The prepared statement of Mr. Martinez follows:]

PREPARED STATEMENT OF STEVEN M. MARTINEZ

Good morning Mr. Chairman, Ranking Member Scott, and members of the subcommittee. 

My name is Steven Martinez and I am the Deputy Assistant Director of the FBI’s Cyber Division. The primary mission of the Cyber Division is to supervise the Bureau’s investigation of federal violations in which computer systems, including the 

Internet, are exploited by terrorists, foreign government intelligence operatives, and 

criminals. In short, our mission is to protect the American public against a host of 

significant and potentially deadly high-tech crimes. 

The uses of technology in our society are innumerable and their value immeasurable. The state of technology has been advancing rapidly over the past twenty 

years, much of it to the benefit of people living in all corners of the world. Unfortunately, the picture is not always so bright. Technology has also been used to harm 

people, while offering a particularly effective escape route. In this digital age, crimes 

can and do occur within seconds without the perpetrator ever getting anywhere 

physically close to the victim. In such a setting, law enforcement must be equipped 

with the investigative tools necessary to meet, locate, and incapacitate this growing 

threat. Law enforcement must be prepared to face sophisticated enemies and criminals who are known to exploit technology because of its ability to keep them far 

away from the scene of the crime, spread apart even from one another, and who 

have the ability to delete any digital evidence of their actions at the push of a button. 

With this background in mind, I want to thank you for the opportunity to appear 

before you today to discuss certain sections of the USA PATRIOT Act which are 

scheduled to expire at the end of this year, specifically sections 209, 217, and 220. 

When Attorney General Gonzales testified before the House Judiciary Committee 

on April 6, 2005, he shared his firm view that each of the provisions of the USA 

PATRIOT Act that are scheduled to sunset at the end of this year must be made 

permanent. Director Mueller provided the FBI’s perspective in a hearing before the 

Senate Judiciary Committee on April 5, 2005, and he too spoke of the crucial need 

to renew these provisions. Based on my knowledge of the interests, capabilities, and 

motives of those who, day in and day out, are attempting to do us harm by means 

of the Internet, I want to express my full agreement about the importance of the 

PATRIOT Act and the provisions I plan to address today. I believe that the Act’s substantial merit can be demonstrated by what we already have experienced as a 

nation; still, it is equally true that the Act is essential so that we are prepared to 

confront the ever-evolving threat that no doubt will come. 

SECTION 20—SEIZURE OF VOICE MAIL WITH A SEARCH WARRANT

Going in numerical order, allow me to start with section 209. Section 209 permits 

law enforcement officers to seize voice mail with a search warrant rather than a 

surveillance, or Title III, order. Section 209 provides a very good example of how 

the USA PATRIOT Act simply updated the law to reflect recent technological developments. The drafters of the Act determined that obtaining voicemail stored on a 

third party’s answering system is more similar to obtaining voicemail stored on a 

home answering machine (which requires a search warrant) than it is to monitoring 

somebody’s telephone calls (which requires a TIII order). In passing this portion of 

the Act, Congress made the statutory framework technology-neutral. Privacy rights 

are still well accounted for, since section 209 allows investigators to apply for and 

receive a court-ordered search warrant to obtain voicemail pursuant to all of the 

30

pre-existing standards for the availability of search warrants, including a showing 

of probable cause. With privacy rights left firmly intact, there is a distinct advantage to the public’s safety when law enforcement can obtain evidence in a manner 

that is quicker than the Title III process. 

The importance of this provision is best understood in the context of how often 

terrorists and other criminals rely on technology to relay their plans to each other 

instead of risking face-to-face in-person meetings. Attorney General Gonzales gave 

a good sense of the diversity of those who would rely on the simple convenience of 

leaving voicemail in furtherance of their illegal activities when he pointed out that 

section 209 has already been relied upon to acquire messages left for domestic terrorists, foreign terrorists, and international drug smugglers. 

Allowing section 209 to expire would once again lead to different treatment for 

voicemail messages stored on a third party’s system than for the same message 

stored on a person’s home answering machine. Doing so would needlessly hamper 

law enforcement efforts to investigate crimes. 

SECTION 217—THE HACKER TRESPASSER EXCEPTION

I would like to move next to section 217, the hacker trespasser exception. Like 

section 209 before it, section 217 also makes the law technology-neutral. Section 217 

places cyber-trespassers—those who are breaking into computers—on the same footing as physical intruders. Section 217 allows the victims of computer-hacking crimes 

voluntarily to request law enforcement assistance in monitoring trespassers on their 

computers. Just as burglary victims have long been able to invite officers into their 

homes to catch the thieves, hacking victims can now allow law enforcement officers 

into their computers to catch cyber-intruders. Think for a moment how odd it would 

be if a homeowner yelled out to a police officer ‘‘Hey, there’s a burglar in my house 

right now, help!’’, only to have the police respond, ‘‘Sorry, I have to apply for a court 

order first, try not to scare him off.’’ The homeowner would be dumbfounded, and 

the burglar would be long gone by time the police returned. This, in essence, is what 

was occurring prior to the PATRIOT Act. 

It can be said that section 217, in a very significant way, enhances privacy. First, 

it is carefully crafted to ensure that law enforcement conducts monitoring against 

trespassers in a manner entirely consistent with protecting the privacy rights of law 

abiding citizens. Second, the essence of the section—to help catch hackers—serves 

a vital function in the FBI’s ability to enforce data privacy laws. 

With respect to the first point, the narrowly crafted scope of this legislation, section 217 preserves the privacy of law-abiding computer users by sharply limiting the 

circumstances under which the trespasser exception may be used. At its most fundamental level, section 217 requires consent. Law enforcement assistance is by invitation only. The computer crime victim is actually seeking the FBI’s help. In addition, 

a law enforcement officer may not conduct monitoring based solely on the computer 

owner or operator’s consent unless the law enforcement officer is engaged in a lawful investigation; has reason to believe that capturing the communications will be 

relevant to that investigation; and can ensure that the consensual monitoring will 

acquire only those communications that are transmitted to or from the hacker. On 

top of these requirements, section 217 then goes one step further. Based on the definition of a ‘‘computer trespasser,’’ section 217 does not allow law enforcement to 

come to the immediate aid of victims who are being hacked by one or more of their 

own customers. In those cases the owner or operator of the computer system cannot 

provide sufficient consent to monitor the trespasser, even if the hacker/customer 

broke into areas of the computer he has no authority to see (including other customer account information). 

Still, despite this last limitation, the hacker trespasser exception has been an important tool for law enforcement to obtain evidence based on the consent of the victim, much of which involves protecting people’s privacy. 

A diverse array of real-world examples from our criminal investigations demonstrate that this provision has been significant in order for the FBI to protect the 

privacy rights of individuals and businesses whose computers are being broken into 

for the purpose of stealing the personal data stored on their computers. Hackers 

have no respect for your privacy or mine. When hackers break into a computer network and obtain root access they get to look at, download, and even can make 

changes to, whatever information is on that network. Hackers can and do routinely 

steal social security numbers, credit card numbers, and drivers license numbers. Depending on the systems they break into, they can look at health care information 

and can change it at will. There has been an outpouring of concern from the American public to protect them from identity theft and to ensure that their personal 

records are secure. Congress has responded with a powerful array of laws that are 

31

designed to impose serious consequences on computer hackers. However, if law enforcement does not have the ability to quickly spot and then locate hackers, then 

the victim toll will mount and only the hackers themselves, remaining anonymous, 

will be left with privacy. The FBI understands the importance of preventing criminals from stealing and selling our information, and we are resolved to catch those 

who do. Section 217 is of enormous help in this regard. 

For example, under this provision, the FBI was able to monitor the communications of an international group of ‘‘carders’’ (individuals that use and trade stolen 

credit card information). The group used chat rooms and fraudulent websites to 

commit identity theft, but managed to provide themselves with privacy by using 

false names to get e-mail accounts. The most important tool in their bid to remain 

anonymous was their use of a proxy server they broke into and then reconfigured. 

The identity thieves used the proxy server to disguise where all of their Internet 

communications were coming from. The owner of the proxy server was himself a victim of the crime, his computer having essentially been hijacked and transformed 

into the hub of a criminal operation. When he determined that his computer had 

been hacked he provided the FBI with consent to monitor the intruder and hopefully 

to catch him. The computer owner’s ability to bring in the FBI paid off, not just for 

him but for the countless other victims of the identity thief. By taking advantage 

of hacker trespasser monitoring, the FBI gathered leads that resulted in the discovery of the true identity of the subject. The subject was later indicted and is now 

awaiting trial. 

Since its enactment, section 217 has played a key role in a variety of hacking 

cases, including investigations into hackers’ attempts to compromise military computer systems. Allowing section 217 to expire at the end of this year would help 

computer hackers avoid justice and prevent law enforcement from responding quickly to victims who are themselves asking for help. 

SECTION 220—SEARCH WARRANTS FOR ELECTRONIC EVIDENCE

LOCATED IN ANOTHER DISTRICT

Lastly, I would like to turn to section 220 of the USA PATRIOT Act. Section 220 

enables federal courts—with jurisdiction over an investigation—to issue a search 

warrant to compel the production of information (such as unopened e-mail) that is 

stored with a service provider located outside their district. The practical effect of 

this section is that our FBI Agents are no longer limited to applying for a search 

warrant solely from the court that sits where the service provider happens to be located. 

Before discussing this section in depth, I think it is helpful to point out that the 

borderless nature of Internet crime means that more often than not ***the 

victim  of a crime, the person who committed the crime, and ** *the evidence**** 

of that crime are all located in different parts of the country (or indeed the world). 

Applying this fact in the context of a search warrant will demonstrate the utility 

and the necessity of section 220. 

Prior to the PATRIOT Act, if an investigator wanted to obtain the contents of unopened e-mail from a service provider located in the United States, he or she needed 

to obtain a warrant from a court physically located in the same federal district as 

the service provider was located. To accomplish this, the FBI Agent working on the 

case (this Agent typically would be located where the victim is located) needed to 

brief another FBI Agent and prosecutor who were located in the ISP’s jurisdiction 

(where the evidence happened to be electronically stored). The second FBI Agent 

and prosecutor then would appear before their local court to obtain the search warrant. This was a time and labor consuming process. Furthermore, because several 

of the largest email providers are located in a few districts, such as the Northern 

District of California and the Eastern District of Virginia, these FBI Agents, Prosecutors, and Judges were faced with a substantial workload dealing with cases in 

which neither the victim nor the criminal resided, and they had to be brought up 

to speed about the details of an investigation which, both beforehand and afterwards, they had no need to know. 

Section 220 fixed this problem. It makes clear, for example, that a judge with jurisdiction over a kidnaping investigation in Pittsburgh can issue a search warrant 

for e-mail messages that are stored on a server in California. As a result, the investigators in Pennsylvania can ask the judge most familiar with the investigation to 

issue the warrant rather than having to ask an Assistant United States Attorney 

in California, who is unfamiliar with the case, to ask a district judge in California, 

who also is unfamiliar with the case, to issue the warrant. Lest you think this is 

merely a hypothetical example, it’s not. Using section 220, our FBI office in Pittsburgh was able to obtain a warrant for information residing on a computer in CaliVerDate 0ct 09 2002 09:14 Jun 27, 2005 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\042105\20710.000 HJUD1 PsN: DOUGA
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fornia that ultimately led to the rescue of a teenage girl who was being sexually 

tortured in Virginia while being chained to a wall in somebody’s basement. The man 

who held her hostage is now in prison, serving close to 20 years. The girl’s life was 

saved. 

Other FBI Field Offices also have repeatedly stated that section 220 has been 

very beneficial to quickly obtain information required in their investigations. The 

value of this provision in terrorism cases already has been demonstrated time and 

again. In his April 6 testimony, Attorney General Gonzales pointed to its important 

application during investigations into the Portland Terror Cell, the ‘‘Virginia Jihad’’, and the Richard Reid ‘‘shoebomber’’ case. It is imperative that section 220 be renewed. The provision expedites the investigative process and, in doing so, makes it more likely that evidence will still be 

available to law enforcement after it executes a court-authorized search warrant and 

obtains further leads; the provision frees up FBI, U.S. Attorney, and judicial personnel to more efficiently pursue other time-sensitive investigative matters; and, 

section 220 in no way lowers the protections that apply to the government’s application for a search warrant. 

CONCLUSION

Mr. Chairman and Members of the Committee, the provisions of the USA Patriot 

Act I have discussed today have proven significant to a number of our successes and 

I have every reason to believe that the need to retain these provisions in the future 

is also significant. By responsibly using the statutes provided by Congress, the FBI 

has made substantial progress in its ability to enforce the law and protect lives, 

while at the same time protecting civil liberties. In renewing those provisions scheduled to ‘‘sunset’’ at then end of this year, Congress will ensure that the FBI will 

continue to have the tools it needs to combat the very real threats to America and 

our fellow citizens. Thank you for your time today.

Mr. COBLE. Thank you, Mr. Martinez. Mr. Dempsey? 

TESTIMONY OF JIM DEMPSEY, EXECUTIVE DIRECTOR, 

CENTER FOR DEMOCRACY AND TECHNOLOGY 

Mr. DEMPSEY. Mr. Chairman, Representative Scott, Members of 

the Subcommittee, good morning. 

Mr. COBLE. Hold. If you will just suspend just a minute, Mr. 

Dempsey, I wanted to recognize the presence of the Gentlemen 

from Florida, Ohio, and Arizona to my right and the Gentleman 

from Massachusetts to our left. 

Go ahead, Mr. Dempsey, and you won’t be penalized for that 

time. 

Mr. DEMPSEY. Thank you, Mr. Chairman. We commend you, Mr. 

Chairman, and Members of the Subcommittee and the full Committee leadership for undertaking this series of hearings on the 

PATRIOT Act. From this kind of detailed, objective inquiry, we can 

attain the balance that was left aside in the haste and emotion in 

the weeks after 9/11. 

My main point today is that while, of course, the law needs to 

keep pace with changing technology to ensure that the Government 

can get the information that it needs to prevent crime and terrorism, at the same time the law also needs to keep pace with 

changing technology to protect privacy, especially as technology 

changes in ways that make ever larger volumes of information 

available to the Government, particularly to acquire from third 

parties. 

The PATRIOT Act addressed only one side of this equation. Now 

is the time for Congress to address the privacy issues and finish 

the job. 

Perhaps the biggest change that is happening in technology that 

increases governmental access to information and that affects priVerDate 0ct 09 2002 09:14 Jun 27, 2005 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\042105\20710.000 HJUD1 PsN: DOUGA
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vacy is the storage of more and more information on computer networks, and under the control of third parties. The kind of information that you would normally keep in your file drawer, even on 

your laptop in your own possession, that information is increasingly moving out onto networks, onto web-based storage. And the 

law just draws a distinction, and I think a now outdated distinction, between interception of communications in transit and access 

to those communications in storage. And it draws a further distinction between whether the e-mail is opened or unopened. If it’s 

opened, it gets less protection than if it’s unopened. If it’s older, it 

gets less protection than if it’s new. 

Our recommendation is that Congress should take the Justice 

Department’s description of 209, for example, the so-called 

voicemail provision, take their explanation and their description of 

that at face value and make seizure of all stored communications 

subject to a warrant. 

The problem is that the way the law now works, if a stored 

voicemail is opened on your home answering machine—you listen 

to it, but you save it—it’s protected fully by the fourth amendment, 

subject to a warrant. If it’s opened on a third party server, it no 

longer is protected by the warrant requirement, which is why we 

say that section 209 is a little misleadingly named. 

If that voicemail is older than 180 days or that e-mail is older 

than 180 days, it’s not protected by the warrant requirement on the 

ISP computer, even though it is fully protected still if you’ve printed it out and put it in your file drawer, fully protected by the warrant requirement. 

So Congress should eliminate this distinction, and, in fact, this 

Committee, the full Committee, did vote in 2000 to eliminate that 

distinction and to make all stored communications—whether 

opened or unopened, stored—I mean a long period of time or short 

period of time—subject to the same warrant requirement that the 

Justice Department refers to. 

Turning just briefly to the interception of—and also to apply to 

those provisions some of the other protections in the law. Again, 

ensuring that the Government has the access, but, for example, we 

have absolutely no reporting on how often the Government accesses 

stored e-mail. We have very good and detailed statistical reports on 

live interceptions of e-mail and of phone calls through the annual 

wiretap report. But we really don’t have a sense of access to stored 

communications. And as Professor Swire will describe now, with 

Voice Over IP, we’re actually going to be seeing entire voice conversations stored for perhaps lengthy periods of time as the storage 

capacity is made available. 

Section 217. This isn’t quite like the homeowner. When the 

homeowner—the homeowner can invite the police into this property 

in order to find an intruder. But the homeowner cannot authorize 

the police to look in the pockets of the intruder. They cannot authorize the police to open up the briefcase of the intruder and read 

what’s inside the briefcase. It requires another exception to the 

warrant requirement: search incident to an arrest, which we don’t 

have here; protection of the officer, which we don’t have here. So 

this isn’t just like that homeowner search. 

34

Nationwide service of warrants I think could be very nicely addressed by allowing those warrants to be challenged both in the jurisdiction in which they are issued and in the jurisdiction in which 

they are served. I think that’s an equitable and minor change that 

would rebalance that. 

Mr. Chairman, Members of the Committee, we look forward to 

working with you on these issues as we move forward between now 

and the end of the year. Thank you. 

[The prepared statement of Mr. Dempsey follows:]

PREPARED STATEMENT OF JAMES X. DEMPSEY

Chairman Coble, Rep. Scott, Members of the Committee, thank you for the opportunity to testify at this important hearing. We want to commend the Subcommittee 

and the full Committee leadership for undertaking this series of hearings on the PATRIOT Act. From this kind of detailed, objective inquiry, we can attain the balance 

that was left aside in the haste and emotion of the weeks after 9/11. 

Our main point today is that while, of course, the law needs to keep pace with 

changing technology to ensure that government agencies have access to information 

to prevent crime and terrorism, the law also needs to keep pace with changing technology to protect privacy, as technology makes ever larger volumes of information 

available for the government to acquire from third parties, without going to the subject of interest, as it used to have to do under the Fourth Amendment. The PATRIOT Act addressed only one side of this equation, making government access 

easier without counterbalancing privacy improvements. Now is the time for Congress to finish the job and address the privacy side of the equation. 

In CDT’s view, there are few if any provisions in the PATRIOT Act that are per 

se unreasonable. We see not a single power in the Act that should sunset. The question before us—and it is one of the most important questions in a democratic society—is what checks and balances should apply to those powers. With respect to the 

particular PATRIOT powers at issue in today’s hearing, those time-honored checks 

and balances should include:

• Judicial review of intrusive techniques, preferably judicial approval before a 

search.

• Second, as a general rule, individuals should have notice when their communications are acquired by the government.

• Finally, government surveillance needs to be subject to Congressional oversight and some public accountability, including through more detailed unclassified reporting.

In one way or another, PATRIOT Act provisions fail to include these checks and 

balances. 

PREVENTION OF TERRORISM DOES NOT REQUIRE SUSPENSION OF

STANDARDS AND OVERSIGHT

At the outset, let me stress some basic points on which I hope there is widespread 

agreement:

• Terrorism poses a grave and imminent threat to our nation. There are people—almost certainly some in the United States—today planning additional 

terrorist attacks, perhaps involving biological, chemical or nuclear materials.

• The government must have strong investigative authorities to collect information to prevent terrorism. These authorities must include the ability to conduct electronic surveillance, carry out physical searches effectively, and obtain 

transactional records or business records pertaining to suspected terrorists.

• These authorities, however, must be guided by the Fourth Amendment, and 

subject to Executive and judicial controls as well as legislative oversight and 

a measure of public transparency.

THE LAW NEEDS TO KEEP PACE WITH TECHNOLOGY—BOTH TO PROVIDE APPROPRIATE

TOOLS TO LAW ENFORCEMENT AND TO PROTECT PRIVACY

We have been told that this hearing will focus on three sections: 209 (misleadingly 

entitled ‘‘seizure of voice-mail pursuant to a warrant’’); 217 (interception of computer 

trespasser communications); and 220 (nationwide service of search warrants for 

35

electronic evidence). Sections 209, 217 and 220 are not among the most controversial 

provisions of the PATRIOT Act. The fact that they are subject to the sunset at all, 

while, for example, the ‘‘sneak and peek’’ authority in Section 213 and the national 

security letter expansions in Section 505 are not subject to the sunset, illustrates 

how the debate over the sunsets is somewhat misplaced. 

As with most other sunsetted provisions, there is little call for denying government the access to information provided under Sections 209, 217 and 220. Rather, 

the questions posed by these sections are matters of checks and balances, related 

to the continuing but uneven effort to rationalize the standards for government access to electronic communications and stored records in the light of ongoing changes 

in technology. It is worth noting that Sections 209, 217 and 220 have no direct connection with terrorism. They apply to all criminal cases. 

These sections highlight an overarching concern about the way in which amendments to the surveillance laws in recent years, and especially in the PATRIOT Act, 

have served as a ‘‘one-way ratchet’’ expanding government power without corresponding improvements in the checks and balances applicable to those powers. 

This has been a departure from Congress’ traditional approach to electronic surveillance issues. In the first major wiretap statute, Title III of the 1968 Omnibus Crime 

Control Act; in the Electronic Communications Privacy Act of 1986; and even in the 

controversial Communications Assistance for Law Enforcement Act of 1994, Congress and the Justice Department agreed on the twin goals of ensuring law enforcement authority to intercept communications while also strengthening privacy protection standards, especially in light of changing technology. 

This spirit of balance has unfortunately been lost. In recent years, time and again, 

the Department of Justice has proposed changes in the surveillance laws that reduce judicial oversight or increase Executive Branch discretion, and Congress has 

too often enacted them, without ever considering how these changes add up or 

whether other changes may be needed to increase privacy protections in response 

to advancements in technology that have made the government’s surveillance more 

intrusive. Sometimes, as with the PATRIOT Act, this one-way expansion of government power occurs in a time of intense crisis. Sometimes, these changes occur 

stealthily, like the ‘‘John Doe roving tap’’ change that was added to FISA in December 2001 by the conference committee on the intelligence authorization act without 

having passed either the House or the Senate. Other one-sided and little debated 

expansions in the government’s discretion include the expansion of ECPA’s emergency disclosure authorities in the legislation creating the Department of Homeland 

Security, Pub. L. 107–296, Sec. 225(d). (That at least included a reporting requirement, which should be made annual.) A further exception to ECPA was made by 

Section 508(b) of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003, Pub. L. 108–21, which allowed 

disclosure without a warrant or subpoena of the contents of communications and 

subscriber identifying information to the National Center for Missing and Exploited 

Children, which in turn can disclose the information to law enforcement agencies. 

Changes to Title III’s roving tap authority were adopted in the Intelligence Authorization Act for Fiscal Year 1999, Pub. L. 105–272, Title VI, Sec 604, Oct 20, 1998, 

112 Stat 2413 (permitting roving taps to be implemented if ‘‘it is reasonable to presume that the person identified in the application is or was reasonably proximate 

to the instrument through which such communications will be or was transmitted’’). 

And Section 731 of the 1996 anti-terrorism act excluded interception of wireless 

data transfers and of information about electronic funds transfers from the coverage 

of Title III. 

Each of these changes is small in isolation, and each had a rationale. None, however, was considered in the context of other, long-recognized changes that need to 

be made to strengthen the privacy protections of the electronic surveillance laws, 

including:

• extending Title III’s statutory suppression rule to electronic communications, 

a change even the Justice Department once supported;

• increasing the standard for pen registers and trap and trace devices, to give 

judges meaningful oversight, a change the full Judiciary Committee supported in 2000;

• eliminating the distinctions between opened and unopened email and between 

relatively fresh and older email, by bringing all stored email under a warrant 

standard, another change the Committee supported in 2000;

• establishing a probable cause standard for access to location information, a 

change this Committee also supported in 2000;

36

• requiring reporting on access to email, also supported by the Committee in 

2000.

With this context in mind, it is easier to see why even some of the minor changes 

in the PATRIOT Act draw concern, for they are part of a steady stream of uni-directional amendments that are slowly eroding the protections and limits of the electronic privacy laws. 

SECTION 209—SEIZURE OF VOICE-MAIL MESSAGES PURSUANT TO WARRANT

Section 209 is described as permitting the seizure of voicemail messages pursuant 

to a search warrant. Previously, while voicemail messages stored on an answering 

machine in one’s home could be seized by a search warrant, access to voicemail messages stored with a service provider had required a Title III order, which offers 

higher protections. The theory behind section 209 is that stored voice messages 

should be treated the same as stored data. 

On one level, Section 209 makes the rules technology neutral, which is usually 

desirable. If Section 209 is taken at face value, and if the only difference it effects 

is between a Title III order and a search warrant, both issued on probable cause, 

Section 209 does not represent a big change. For this reason, CDT has described 

Section 209 as one of the non-controversial provisions of the PATRIOT Act. 

However, as Prof. Swire points out, Section 209 is misleadingly titled: Because the 

law that was amended by 209 draws some bizarre distinctions between read and 

unread email and between newer and older email, Section 209 means that a lot of 

stored voice communications will be available not with a warrant but under a mere 

subpoena. 

Moreover, the Justice Department’s explanation of Section 209 overlooks the importance of notice under the Fourth Amendment and under Title III, and the absence of notice under the rules applied to stored material held by a service provider. 

When voicemail stored on your home answering machine is seized, you are normally 

provided notice at the time of the search. You can examine the warrant and immediately assert your rights. When email or voicemail is seized from a service provider 

pursuant to a warrant, you as the subscriber may never be provided notice unless 

and until the government introduces the information against you at trial. If you 

were mistakenly targeted or the government chooses not to use the evidence, you 

need never be told of the search of your stored communications, so you have little 

meaningful opportunity to seek redress. 

In the case of stored messages (whether email or voicemail), it is not even necessary from an investigative standpoint to deny contemporaneous notice in the way 

it is with live interception. Denial of notice is justified in the case of real-time interceptions because the effectiveness of the technique would be destroyed if the target 

were given contemporaneous notice. In the case of stored email or stored voice messages, the evidence is already created and, especially if notice is given immediately 

after seizure, the subject cannot destroy it. Denial of notice in the case of third party 

searches for stored email or voicemail is not justified. 

Recommendation: Congress should take the Justice Department’s description of 

Section 209 at face value, and make all seizure of stored communications, whether 

voice or email, subject to a warrant. It could do so by eliminating the difference between opened and unopened stored records and between records 180 days old or less 

and records more than 180 days old. It should take the Justice Department’s arguments at face value and adopt truly technology neutral rules for voice and data, 

whether in transit or in storage, applying the protections afforded under Title III:

• minimization of non-relevant material,

• notice to persons whose communications have been intercepted,

• a statutory suppression rule, and

• detailed statistical reports to Congress and the public.

All of these protections apply to e-mail and voice when intercepted in transit. 

None of them apply to e-mail and voice seized from storage. 

The Storage Revolution Is Rendering the Law Obsolete 

A storage revolution is sweeping the field of information and communications 

technology. Service providers are offering very large quantities of online storage, for 

email and potentially for voicemail. Increasingly, technology users are storing information not in their homes or even on portable devices but on networks, under the 

control of service providers who can be served with compulsory process and never 

have to tell the subscribers that their privacy has been invaded. New Voice over 

Internet Protocol (VoIP) services may include the capability to store past voice conVerDate 0ct 09 2002 09:14 Jun 27, 2005 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\042105\20710.000 HJUD1 PsN: DOUGA
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versations in a way never available before, further obliterating the distinction between real-time interception and access to stored communications. 

Section 209 takes a seemingly small category of information out of the full protection of the Fourth Amendment and moves it under the lowered protections accorded 

to remotely stored communications and data. But stored voicemail is the tip of an 

iceberg. Increasingly, individuals are using stored email to store documents, including draft documents on computers operated by service providers and accessed 

through a Web interface. 

Rather than allowing growing amounts of personal information to fall outside the 

traditional protections of the Fourth Amendment, it is time to revisit the rules for 

networked storage (whether of voice or data) and bring them more in line with traditional Fourth Amendment principles, by requiring contemporaneous notice as the 

norm and covering both newer records and older records (again, whether voice or 

data) under the same probable cause standard. That would be truly technology neutral and would have the advantage of not allowing technology advances to erode privacy protections. 

Section 217—Interception of computer trespasser communications 

Section 217 permits law enforcement agencies to carry out electronic surveillance 

of without a court order when the service provider permits the surveillance on the 

ground that a ‘‘trespasser’’ is using its system. Section 217 represents another in 

a steadily growing series of exceptions to the protections of the electronic communications privacy laws. (The emergency disclosure provision of Section 212 is another example.) 

Section 217 and similar provisions essentially allow ‘‘off the books surveillance’’—

they define certain interceptions not to be interceptions, and certain disclosures not 

to be disclosures. Once an access to communications or data is excluded from the 

coverage of the surveillance laws, not only is it not subject to prior judicial approval, 

but also there are no other protections normally associated with electronic surveillance:

• There is never a report to a judge. (In contrast, under both Title III and 

FISA, when electronic surveillance is carried out on an emergency basis, an 

application must be filed after the fact.)

• There is no time limit placed on the disclosures or interceptions. (A Title III 

wiretap cannot continue for more than 30 days without new approval.)

• There is never notice to the person whose communications are intercepted or 

disclosed.

• There is no statutory suppression rule if the communications were improperly 

seized, and there would be no suppression remedy at all if the information 

is deemed to be outside the protection of the Fourth Amendment.

• The interceptions and disclosures are not reported to Congress or the public.

The Department of Justice, in its defense of Section 217, claims that the privacy 

of law-abiding computer users is protected because only the communications of the 

computer trespasser can be intercepted. But what if the system operator is wrong? 

What if there is a legitimate emergency, but law enforcement targets the wrong person? Under Section 217, a guilty person gets more notice than an innocent person—

the guilty person is told of the surveillance or disclosure but the innocent person 

need never be notified. 

Contrary to the Department’s arguments, Section 217 is not analogous to the case 

of the home trespasser. While the homeowner can invite in the police onto his property, the homeowner cannot authorize the police to go through the trespasser’s pockets or read the papers in his briefcase. To do so requires a separate Fourth Amendment basis, which would require a warrant unless one of the exceptions applied, and 

in the online context, there may be no other exception available. 

Recommendation: While an emergency exception to the court order requirement 

may be appropriate for trespasser situations, interceptions under the trespasser rule 

should be treated as interceptions under Title III:

• As with other emergency interceptions, when electronic surveillance is carried 

out on an emergency basis, an application for judicial approval must be filed 

after the surveillance commences

• The length of interceptions should be limited to the time necessary to identify 

the trespasser or for 30 days, whichever is less

• Interceptions under the trespasser rules should be treated as interceptions for 

purposes of giving delayed notice to the person whose communications are 

intercepted.

38

• Interceptions under the trespasser rules should be treated as interceptions for 

purposes of the statutory suppression rule.

• Interceptions under the trespasser rule should be counted as interceptions for 

Title III purposes and included in the annual Wiretap Report. 

Section 220—Nationwide service of search warrants for electronic evidence 

Section 220 amended 18 U.S.C. 2703 to allow judges to issue search warrants for 

electronic evidence that can be executed outside of the district in which the issuing 

court is located. In a world where the center of an investigation may be in one state, 

but the target’s ISP has its servers in another state, this makes obvious sense. 

Moreover, unlike Section 216, which authorizes a kind of roving pen register (one 

order can be served on multiple service providers in different districts until the government gets the full picture it wants), it seems that search warrants under Section 

220 have to name the service provider upon whom they will be served. If it turns 

out that that provider does not have the records being sought, the government will 

have to obtain a new search warrant (as it would any time a search warrant does 

not turn up the expected evidence.) 

However, as the Electronic Privacy Information Center has noted, Section 220 removes ‘‘an important legal safeguard by making it more difficult for a distant service provider to appear before the issuing court and object to legal or procedural defects. Indeed, it has become increasingly common for service providers to seek clarification from issuing courts when, in the face of rapidly evolving technological 

changes, many issues involving the privacy rights of their subscribers require careful judicial consideration. The burden would be particularly acute for smaller providers.’’

Recommendation: One solution to this problem is to allow a warrant to be challenged not only in the district in which it was issued but also in the district in 

which it is served. While the issuing judge may have a better sense of the factual 

basis for the order, a judge in the district in which the order is served may be in 

a better position to interpret or redefine the scope of the order in light of issues concerning the system of the service provider on whom the order is served. 

Even aside from Section 220, whether search warrants for electronic evidence are 

issued for evidence inside or outside their jurisdictions, judges should question applicants to be sure that the warrant is narrowly drawn. Judges should use extra 

care in understanding what information is being sought, whether it will be copied 

or originals will be seized (interfering with ongoing business), and whether it is possible to disclose just certain fields or just records from a certain pertinent timeframe. These are analogous to questions that judges have the authority to consider 

in the case of physical searches, but judges need to understand computer systems 

in order to fully enforce the specificity requirement of the Fourth Amendment in the 

digital context. Judges should look more carefully at the return of service. While notice under 18 U.S. C. 2705(b) can be prohibited, judges should be hesitant to deny 

notice to the person to whom the records pertain, since the subscriber is really in 

the best position to raise legitimate concerns. This is just another way in which 

judges faced with the authorities of the PATRIOT Act can assert closer scrutiny and 

place conditions on the exercise of PATRIOT authorities without denying the government access to the information needed. 

CONCLUSION

CDT supports the Security and Freedom Enhancement (SAFE) Act, a narrowly 

tailored bipartisan bill that would revise several provisions of the PATRIOT Act. It 

would retain all of the expanded authorities created by the Act but place important 

limits on them. It would protect the constitutional rights of American citizens while 

preserving the powers law enforcement needs to fight terrorism. 

We look forward to working with this Subcommittee and the full Committee as 

you move forward in seeking to establish some of the checks and balances that were 

left behind in the haste and anxiety of October 2001.

Mr. COBLE. Thank you, Mr. Dempsey. Professor Swire. 

TESTIMONY OF PETER SWIRE, PROFESSOR OF LAW,

OHIO STATE UNIVERSITY 

Mr. SWIRE. Thank you, Mr. Chairman, and Mr. Ranking Member, and Members of the Committee. I appreciate very much the 

opportunity to testify before you today. 

39

Most of my remarks today will be on section 209 of the PATRIOT 

Act, the section that expanded the Government’s access to 

voicemail and many other telephone conversations without the 

need for a wiretap order. 

Before turning to that, I will briefly comment on the other two 

sections that are the subject of today’s hearing. 

Both section 220, on nationwide service of warrants, and section 

217, the computer trespasser exception, were considered in detail 

when I chaired a White House Working Group in 2000 on how to 

update surveillance law for the Internet Age. As my written testimony explains in greater detail, I generally support extension of 

section 220 although with some refinements that Jim Dempsey has 

in his written testimony. 

For section 217, however, modifications should be made. Section 

217 solves some important real-world problems. It lets a computer 

system owner ask the police for help when their system is under 

attack. With the owner’s permission, law enforcement can surf over 

the shoulder of the system operator in order to spot the hacker and 

track him back through the Internet. That’s the good news. 

The bad news, though, is that there are no checks against abuse 

in the section. Section 217 says the police are only supposed to look 

at the communications of the hacker. But if the police look at other 

e-mail and web traffic they can still use all that information. They 

can use it in future investigations. They can use it in court. The 

incentives for law enforcement are to get permission to enter the 

system under 217, and then see how much they can get to see 

while they’re there. 

As my written testimony explains, there is a simple solution to 

this. It’s the same solution that this Committee, the Judiciary 

Committee in full, passed in 2000, with only one dissenting vote. 

The simple solution is that the same suppression rule that applies 

to phone wiretaps should also apply to e-mails. If law enforcement 

breaks the legal rules, if they go too far and break the law, they 

should not get to use the fruits of the illegal search. 

The rest of my time I’m going to spend on section 209. It turns 

out that section 209 has much broader ramifications than most 

people realize—than I realized before I was asked to testify this 

week. 

Section 209 allows the Government to get access to voicemails 

and many telephone conversations with much less than a wiretap 

order. The actual textual change in 209 is simple. The old law said 

that stored electronic records were under looser rules of the Stored 

Communications Act. All the PATRIOT Act did was say stored wire 

or electronic records; wire means any voice, telephone calls, 

voicemail sorts of records. 

In many instances under section 209 now, law enforcement can 

get your stored, but also stored voice now with a grand jury subpoena, where there’s no judge involved at all or else with a judicial 

order that requires much less than probable cause. 

Section 209 was given to the Congress and to the public as if it 

were only about voicemail. It does apply to voice mail, which are 

stored telephone communications, but that’s not all. The key new 

thing I think we’re learning is that section 209 applies to any and 

40

all telephone conversations that are stored. The term ‘‘voice mail’’

does not exist in the statutory text, except in the title. 

Should any of us care about stored telephone conversations? The 

answer is yes. The simple technological fact is that stored telephone conversations are becoming much more common due to 

changing phone technology. Every major telecomm company is part 

of this shift. SBC, Comcast, Verizon, Qwest—all of them are implementing right now major moves into this new phone technology. 

The new technology has a clumsy name, VOIP, which means Voice 

over Internet Protocol. What it means is that telephone conversations are shifting to this Internet protocol. What that means, in 

turn, is that telephone conversations are being stored at home and 

in the network for millions of Americans. 

The numbers for this change are big and they are real. This is 

not Internet hype. The phone software called Skype has now recorded over 100 million downloads. Over 20 percent of all new business phones already use this technology, with estimates of over 

half of new business phones within 3 years. Growth rates in the 

residential sector are over 30 percent a year. 

Because VOIP uses the Internet to transmit voice, all the tools 

that make the internet work come into play. The Internet tool that 

section 209 takes advantage of is called caching. Just as your web 

browser stores graphics and images in its caches, ordinary users 

can and will have their phone conversations stored or cached at the 

Internet network level. People won’t even realize their phone conversations are being stored, putting their phone calls at risk of 

being seized with much less than a wiretap order. 

What should be done with section 209? The first thing is that you 

shouldn’t simply take my word for these changes. You should ask 

the Department of Justice. They’re here today and my written testimony suggests questions you can pose to the Department. And 

this way, all of us will know what the new law really means. 

My written testimony suggests possible changes to be done to address this concern, and in conclusion I thank the Committee for the 

opportunity to share these thoughts. 

My written testimony contains citations to my law review and 

other writings on the PATRIOT Act, and if I can be of assistance 

in the future, please do not hesitate to ask. 

[The prepared statement of Mr. Swire follows:]

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PREPARED STATEMENT OF PETER P. SWIRE


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Mr. COBLE. Thank you, professor, and we’ve been joined by the 

Gentlelady from California, Ms. Waters. 

We will probably, folks, have a second round today. This is a very 

important subject matter, so we’ll probably do a second round. 

Ms. Parsky, your written testimony provides a good description 

of the distinction between communications subject to a wire tap 

communication—subject to stored communications. 

You state that the Wire Tap Act—and I assume that you refer 

to wiretaps generally—was designed to address a very particular 

type of situation: the ongoing interception of real-time conversations. You then distinguish ongoing interception of real-time with 

the one time access to stored communications, such as voicemail. 

Now, if I understand Professor Swire’s claims, he argued that the 

possibility—that with the possibility of future technology, store 

telephone calls over the computer—the distinction between wiretaps and stored communications will be lost. 

Cannot a person already record their phone calls through hightech message machines? 

Ms. PARSKY. Mr. Chairman, you raise a very important issue, 

which I think actually there are two issues raised by Professor 

Swire that I’d like to clarify. 

One is that to the extent that individual parties choose to store 

or to record conversations that they may have, whether it be over 

VOIP, which uses an Internet protocol, or over a normal telephone, 

over a wire system, once those communications are stored by the 

individual in either world they are subject to a search warrant. 

There’s nothing that’s special or different about VOIP in that context. 

You could just as easily have a conversation with—between two 

parties and one of the parties has a—makes a consensual recording 

of that conversation and stores it on a cassette in their home. 

The other important thing to point out is that VOIP does not 

change the obligations that are on service providers, whether they 

be a cable company or a telephone company; that to the extent that 

there’s any interception and seizure of communications beyond that 

which is necessary to the provision of the services, they’re violating 

the Wiretap Act, and there are consequences for that. 

So I think that there is much ado about the new technologies 

that are coming up in our future. But, in fact, there’s really nothing different except for the protocol. The same laws, the same restrictions would apply. 

Mr. COBLE. Thank you. Professor Swire, is—you indicate that 

209 applies to all stored telephone communications and not just the 

voicemail. Is not the real distinction that law enforcement receives 

the stored communication through a one-time access request rather 

than ongoing interception? 

Mr. SWIRE. That’s the distinction the Justice Department is supporting. That means that if your phone conversations are stored at 

the network level by your ISP in the future, they’ll be accessible 

under that Stored Communications Act. Up until now, those phone 

conversations that went through the telephone network, you needed a wiretap order to hear what Jim Dempsey and I were saying. 

53

Tomorrow, if it’s stored at the network level, the Justice Department can get it, in some cases with a grand jury subpoena or other 

lower than search warrant requirements. 

Mr. DEMPSEY. Mr. Chairman, could I speak to this question? 

Mr. COBLE. Sure. 

Mr. DEMPSEY. Cause this is a very good line of questioning. 

One distinction is between the sort of real-time interception and 

the stored. 

Another distinction looks to where is it stored. If you store a 

voicemail, an e-mail, a document in your office or in your home, no 

matter how old it is, no matter what you’ve done with it, if you’ve 

read it or not read it, it’s protected fully by the fourth amendment 

and requires a warrant. If you store it outside of your home—if it’s 

stored in the basement of the Capitol Building or stored on a server 

of the telephone company, which increasingly it is—it’s not protected by the fourth amendment. It doesn’t require a warrant, particularly after you’ve read that e-mail or listened to that telephone 

call, and to get one—it’s not so much—there is a distinction between ongoing and one-time. But to get one piece of paper from 

your office, a warrant is required. To get one recorded phone call 

from your office, a warrant is required. You have to get it from——

Mr. COBLE. My time is about to expire. I don’t want to overlook 

Mr. Martinez, since the other three—are you going to weigh in, Mr. 

Martinez? 

Mr. MARTINEZ. Well, again, I think one of the things that we 

need to recall is that we are talking often of situations where consent is acquired, in fact, is initiated by a victim. And so this is a 

different situation than where we would initiate an investigation, 

you know, go through the effort to obtain a wiretap warrant. 

So I think we do need to recognize that there are real victims in 

these types of situations and that consent is often the entry point 

that we have as the law enforcement agency. 

Mr. COBLE. My time has expired. The Gentleman from Virginia. 

Mr. SCOTT. Thank you, Mr. Chairman. Let’s put a little bit—put 

this in perspective. Either search warrant versus a wiretap warrant, what is the exact difference between the two. I mean the wire 

tap you have to have—go to the judge, get a probable cause, listen 

in. It’s limited. Search warrant can be done administratively without a judge looking over from time to time? 

Mr. DEMPSEY. Well, Congressman, in both cases, it requires a 

finding of probable cause by a judge. In the case of a wiretap, at 

least for voice communications, it requires in the Federal case, it 

only applies to a certain number of serious crimes—a list of about 

a hundred of the most serious crimes. It requires senior Justice Department approval. There are periodic reports to the judge. There’s 

a statutory suppression rule in addition to whatever fourth amendment suppression rule there is. And there are these fairly detailed 

and useful reports to Congress about the use of the technique. 

Mr. SCOTT. Mr. Martinez, are there any things such as an administrative search warrant? 

Mr. MARTINEZ. An administrative search warrant? There are administrative subpoenas, but again a search warrant connotes that 

a law enforcement officer has had to make findings of facts, proVerDate 0ct 09 2002 09:14 Jun 27, 2005 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\042105\20710.000 HJUD1 PsN: DOUGA
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vided that in an affidavit, and it is reviewed and becomes an order 

of the court to take action. 

Mr. SCOTT. That’s the search warrant. Now, if you’re going to 

this ISP off site, do you need a search warrant—you don’t need a 

search warrant? 

Mr. DEMPSEY. If the communication is an unopened e-mail 180 

days old or less, you need a search warrant. If it’s an opened email, you use a subpoena. If it’s more than 180 days old, you use 

a subpoena. 

Mr. SWIRE. Can I make a real quick point on that. I don’t think 

we know what an unopened phone call looks like. That’s never 

been defined. But if I’ve talked with you on the phone, the Justice 

Department may think that’s already been opened, and they might 

get it under the lower standard. That’s obviously something to clarify. 

Mr. SCOTT. Well, let’s—Mr. Dempsey, you kind of talked about 

letting the police into my house and letting them look around is 

different from letting them look into the crooks’ pockets. Let me 

know if I got this wrong. I looked at it a little different. I looked 

at it not as me letting the police into the house. I live in an apartment building. How about the apartment superintendent letting 

them into my apartment. Isn’t that more akin to what’s going on 

when AOL let’s you into my e-mails going back and forth? 

Mr. DEMPSEY. I think that’s a very interesting way of looking at 

it. It may be another appropriate way. It is true—and I think appropriate—that system administrators have the right to monitor 

their own systems. I think maybe the supervisor of the apartment, 

if he believes you’re away, and an intruder breaks into your apartment, the supervisor of the building can call the police and say 

someone is in so and so’s apartment. 

Mr. SCOTT. In that case, you’ve got kind of an assumed permission that if there’s a leak, the water is flowing out of my front door 

and I’m not there, the superintendent can go in. Over my objection 

without me knowing, can the building superintendent let the police 

into my apartment to wander around? 

Mr. DEMPSEY. I think there are some circumstances probably in 

which they can. 

Mr. SCOTT. But that’s not the normal situation. 

Mr. DEMPSEY. Now, it would be—let me say one of the ways in 

which people have talked about section 217, this trespasser provision, is as an emergency provision, particularly in the case of computer crime, in which time is of the essence; the hacker may be in 

and out; you need to get the information quickly. 

But if that’s the justification—if we’re looking at a sort of an 

emergency exception—a funny smell is coming from your apartment or there’s terrible noises coming from your apartment, 

screaming—in those kinds of situations, there might be grounds to 

enter without a warrant. But as in emergency wiretaps generally, 

there should be then go to the judge, take care of the emergency, 

then go to the judge, get the order, count it as an interception, 

bring it under the other rules, count it—report it to Congress, et 

cetera. 

Mr. SCOTT. Yeah, but you got to have a check and balance. If you 

call it an emergency and go get something, and it wasn’t an emerVerDate 0ct 09 2002 09:14 Jun 27, 2005 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\042105\20710.000 HJUD1 PsN: DOUGA
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gency, you got the exclusionary rule looking at you. So you don’t 

have an incentive to trip over the fourth amendment. 

Mr. DEMPSEY. Correct. 

Mr. SCOTT. Because if you found something, you can’t use it, so 

there’s no incentive—and that’s kind of the policing mechanism you 

have if there’s no incentive, you don’t do it. 

Mr. DEMPSEY. And here——

Mr. SCOTT. But there is an incentive to cheat and get in there. 

If you can use it, then there are no sanctions because you’re not 

going to be able to sue the police—a guilty person is not going to 

sue the police, and get any——

Mr. DEMPSEY. Well, there are two or three provisions in the PATRIOT Act that I would sort of call ‘‘off the books’’ surveillance. 

What we do is we define it not as an interception or not as a disclosure, and then once we do that under the statutory structure, all 

of the other protections are eliminated, including the suppression 

rule. And what I think Professor Swire and I are saying is recognize the trespasser concept to some extent, but build around it 

some more checks and balances. 

Mr. SCOTT. It’s well known that e-mails kind of survive in cyberspace somewhere after you thought you had erased them. Are 

voicemails similarly preserved some kind of way? If you got a 

Verizon——

Mr. SWIRE. It depends on what Verizon or SBC does in their system. As you move towards——

Mr. SCOTT. You mean we don’t know? 

Mr. SWIRE. I don’t know. 

Mr. SCOTT. We don’t know if our voicemails are preserved in 

cyberspace. Anybody know? We have another round, gentlemen. 

Mr. MARTINEZ. I think that you’d find in the industry that there 

are different means of doing that in different technologies for storage and different reasons that they might have for storing, including billing purposes and that type of thing. 

But if I may for a minute, I don’t know if the analogy or the contrast between an emergency situation and one that is not emergency is really the appropriate one, because we don’t want to take 

away from the victim, and again we talk about systems administrators. They’re in the best position to determine whether or not their 

system is under attack. And there are instances where they may 

have evaluated that they have a situation where they can record 

all that—all the traffic and at a later date, because it’s not considered particularly virulent to their system provide that to law enforcement and say I think I may have had an attack. It doesn’t appear to have been a great one. 

Or they may determine that they are under a current attack and 

there’s information being exfiltrated in real-time. We’re forcing a 

distinction upon them that really ought to be up to them to decide. 

You know do I have a more expedient situation. But what we don’t 

want take away from them is our ability to address it quickly and 

try to mitigate—help mitigate it for them. 

Mr. COBLE. The Gentleman’s time has expired. And as I said, 

we’ll do another round. The Gentleman from Arizona, Mr. Flake. 

Mr. FLAKE. Thank you, Mr. Chairman—the witnesses. 

56

Ms. Parsky, under section 209 how long can law enforcement go 

without notifying a subscriber or a customer that their stored communications have been accessed? How long is it? Is it indefinitely? 

And if not, how long is the longest time that it’s happened? 

Ms. PARSKY. Well, excuse me, under section 209 actually is not 

the provision and the PATRIOT Act is not the provision that makes 

that determination. It’s actually determined by ECPA. And under 

ECPA, there is a requirement that for stored electronic communications or wire communications, section 209 then brings in the wire 

communications, either you need to access them with a search warrant if they are unopened or within the first 180 days, in which 

case there would be notice with the search warrant, or if they are 

older than 180 days, then you have to provide notice and a court 

order. So it’s not a search warrant, but the provision of ECPA requires notice if a search warrant is not used. 

Mr. FLAKE. So under no circumstance is anyone’s stored electronic communication accessed without their knowledge. 

Ms. PARSKY. Well—— Mr. DEMPSEY. Congressman, if I—could I respond? 

Mr. FLAKE. Sure. Please. 

Mr. DEMPSEY. I think in the case of a warrant, the notice is 

served on the service provider with the warrant. There’s no notice 

to the customer ever—— Mr. FLAKE. That’s what I—— Mr. DEMPSEY. —unless the evidence is used against them in 

court. 

Mr. FLAKE. That’s my question. 

Ms. PARSKY. That’s correct. 

Mr. FLAKE. When will the customer know? 

Ms. PARSKY. Well, as with any business records that might be 

stored by a third party, if you have a bank, for instance and there’s 

a grand jury subpoena and law enforcement has, you know, lawful 

right to access those records that are being stored by a third party, 

the customer, the owner of those records, would not get notice either. So this isn’t applying anything different. 

Mr. FLAKE. But this is—it is different, though. 

Mr. SWIRE. But this is the world of stored records we’re moving 

to, and we’re hearing that the customers never find out under 

these grand jury subpoenas and other things. This is what would 

apply to an increasing number of ordinary phone calls going forward. 

Mr. FLAKE. This is different. I would maintain that if you have 

an account at a bank, obviously you’re a customer of that bank. 

Maybe you don’t know that the bank is being monitored or 

surveilled or information is being gathered, but in this circumstance, you are the target. But, yet, because law enforcement 

gets it from a third party, then you, the target, are not informed, 

and you’re saying that that is the case; that can be the case for an 

indefinite period of time? 

Ms. PARSKY. That’s correct. If you are the target, whether it’s a 

voicemail message that’s being stored, or it’s your bank records 

being stored, you would have notice if there are criminal charges 

brought, and that’s part of the Government’s case, through the discovery process. 

57

Mr. FLAKE. But not until the criminal charges are brought? 

Ms. PARSKY. Right. 

Mr. FLAKE. Surveillance—— Ms. PARSKY. It’s comparable in the physical world or in the electronic world. 

Mr. FLAKE. Mr. Dempsey, you care to—— Mr. DEMPSEY. Well, which means that in the case of the individual whose records are wrongly acquired, who’s never charged 

with a crime, the person who really would want to have some recourse, he may never be told. 

Mr. FLAKE. Does that trouble you, Mr. Martinez? You seem to indicate concern for the victims quite a bit. Would somebody be considered who was wrongly believed to have information that would 

make them a suspect, but then never—they never find out that 

they were being surveilled? 

Mr. MARTINEZ. Well, I think one analogy I could draw is in the 

world of physical surveillance. You know we follow bad guys, and 

they make contact with both other bad guys and other unwitting 

people that might not be part of their conspiracy. And so there is 

going to be times when we do have information or do see information that might not regard the actual crime that we—but what 

we’re interested in is evidence. And we’re going to boil it down to 

evidence, and I think that’s the approach we would take. 

Mr. FLAKE. Ms. Parsky, what delays were experienced prior to 

section 209 that made section 209 necessary? 

Ms. PARSKY. Well, I think that there is the basic fact that the 

procedures for obtaining a wiretap, which are procedures that are 

put in place for the very special circumstance and the increased expectation of privacy and invasion of that privacy when you have an 

ongoing interception of live communications. And because of that, 

what the Wiretap Act puts in place additional procedures, additional protections to the Constitution that are resource intensive 

and time consuming. 

With respect to a search warrant, there still are constitutional 

protections. There’s still a standard of probable cause that needs to 

be met, and it’s still presented to a neutral magistrate to make a 

neutral decision, but there aren’t all the same hoops that need to 

be jumped through because it’s a stored communication which, not 

under the PATRIOT Act, but, you know, over 20 years ago, was determined does not meet the same level of protection as an ongoing 

interception. 

Mr. COBLE. The Gentleman’s time has expired. The Gentleman 

from Massachusetts, Mr. Delahunt. 

Mr. DELAHUNT. Yes, thank you, and this is again, Mr. Chairman, 

I want to compliment you and the Ranking Member for providing 

us with a very informative panel, much like the one we just had 

the other day. 

Mr. COBLE. Thanks. 

Mr. DELAHUNT. You know some of us understand the law well. 

And from past experience, we’ve been involved in these kind of investigations involving electronic eavesdropping, et cetera, and we’re 

familiar with the act. 

I think what you have to understand is that many on this panel, 

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nologies. I, for example, don’t know how to use e-mail. I don’t have 

what do you call it a Palm Pilot or a Blackberry. I don’t know how 

to turn on a computer. So I’m really at a disadvantage in the sense 

that I understand the law, but I really don’t understand the technologies. 

But I think the overarching concern—and I think it’s been expressed rather well by both Mr. Dempsey and Professor Swire—the 

issue here is really one of privacy. And fundamentally, I think our 

purpose should be—and in this recent colloquy that you had I think 

with Mr. Flake involving notification—there’s another piece of this, 

too, and that’s the issue of transparency. I think much of the concern that the American people have is what’s happening. You 

know, people like myself really don’t know what’s happening, because we’re not familiar with the technologies. But we have this 

very profound unease that something is happening, and it may be 

untoward and it may be intrusive of our privacy. 

So I think what we ought to be doing is examining how we deal 

with the concerns that the American people have in terms of their 

privacy. I think we address that through as much transparency as 

we can without imposing impediments that are really unreasonable 

on the Government. And I would suggest that’s the kind of balance 

that we want to strike. I see the—this particular—the issues that 

we’ve been discussing here today as an opportunity to do just that. 

I mean why—what’s magical about 180 days? And that is—is that 

really a false distinction? I don’t know. I—you know. 

Mr. SWIRE. Congressman, can I? 

Mr. DELAHUNT. Sure. 

Mr. SWIRE. In preparing for the testimony, I went back and 

looked at the Committee report from 2000 or H.R. 5018. That’s 

when this Committee, the full Committee, in great detail looked at 

many of these issues. That Committee report is written in pretty 

plain English. It explains a lot of these issues and hits some of 

the——

Mr. DELAHUNT. I was on the Committee at the time, and I was 

very proud of the fact that the Committee came out with a—I think 

a fine piece of legislation unanimously and one I think that was 

very thoughtful and many of us were very much engaged in that. 

But I think the reauthorization process now provides us an opportunity to do some clean up and anticipate, like VOIP. I mean I 

don’t even know what VOIP is. I mean I can’t even imagine. What 

do you? What do you sit in front of a screen and talk to the screen? 

I don’t know. 

Mr. SWIRE. No. It’s really great now. You’ll use a regular 

handset. You’ll think it’s a phone call, but it’s going through the 

Internet. 

Mr. DELAHUNT. Well, that’s good. I mean I don’t have a clue. 

Ms. PARSKY. If I may, I’d like to address the privacy issues that 

you raise and I think one important thing here is that we stay focused on the PATRIOT Act and the sunset provisions of the PATRIOT Act. 

Mr. DELAHUNT. Now, see that’s where I disagree with you. Okay. 

I think we have—we can amend the PATRIOT Act without just addressing those provisions that are sunset. I think we have an opportunity here to do something again without imposing an impediVerDate 0ct 09 2002 09:14 Jun 27, 2005 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\042105\20710.000 HJUD1 PsN: DOUGA
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ment on the Government, but if we just focus on these particular 

sections without implicating ECPA and all these other rather significant ancillary pieces of our statutory scheme that by necessity 

are implicated, we’re really not going to, I think, come up with a 

product that I think reassures the American people that their privacy is being protected, for example. That’s my point. 

Mr. DEMPSEY. Congressman, if I could, just on the question of 

transparency. I think you’re 100 percent correct. There are two 

ways that we provide transparency. 

One, which Congressman Flake was referring to—— Mr. DELAHUNT. Notification. 

Mr. DEMPSEY. —notice to the individual. Under the wiretap law, 

the surveillance is conducted in secret. Absolutely. The technique 

would be ineffective. It would be worthless unless there were that 

secrecy. 

Mr. DELAHUNT. Right. 

Mr. DEMPSEY. But after, as you know, the investigation is closed, 

then notice is provided to people whose communications were intercepted whether they are charged with a crime or not. 

But for some of these other provisions, we do not have that kind 

of notice. And, for example, in the trespasser case, section 217 says 

that the trespasser interception is not an interception to be counted, to be notified, to be reported to a judge, et cetera. I think that 

could be addressed. 

The second way we do transparency is by reports to Congress. 

And I think partly the sunset has helped to draw some of that information out, but now if these authorities are going to continue, 

and they probably should continue, there needs to be that kind of 

statutory reporting obligation that says how often are they being 

used, how many individuals’ communications are being implicated, 

et cetera. 

Mr. COBLE. The Gentleman’s time has expired. You may continue 

that for the second round, Mr. Dempsey. I want to say to my friend 

from Massachusetts you have assuaged my discomfort. I am relieved to know that I am not the lone Member of Congress who 

does not possess a Palm Pilot. [Laughter.] 

Mr. DELAHUNT. In fact, we are the brotherhood. 

Mr. COBLE. The Gentlelady from California, Ms. Waters. 

Ms. WATERS. Well, thank you very much. 

Ms. Parsky and Mr. Martinez, since sections 209, 217, and 220 

are not specified as tools solely to combat terrorism and terrorismrelated activities, how many times have these sections been used 

in non-terrorist criminal investigations? If the USA PATRIOT Act 

was passed to aid in terrorism and terrorism-related investigations, 

then what are the purposes for sections 220, 217, and 209 if these 

sections do not limit investigations strictly to terrorism and terrorism-related investigations? 

Ms. PARSKY. Let me begin and then Mr. Martinez I’m sure will 

have some followup. But the first thing that I think is important 

to make clear is that the PATRIOT Act contains provisions that are 

specifically addressed to terrorism, but it also contains provisions 

that are not specifically addressed to terrorism, and because there 

are those specifications in certain provisions, the other provisions 

by necessity are necessity are modernizations of all of the criminal 

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procedures; and that if there had been an intent that it only be applied to terrorism, it would have been stated as such. These provisions that we’re talking about today are some of those very provisions that are intended just to modernize the tools that are available to law enforcement to protect our communities across the 

board, not just the terrorists. 

Ms. WATERS. May I interrupt for one moment? I want to be clear 

that you’re saying that the stored communications that have been 

referenced here so many times today—the telephone calls, et 

cetera—may be accessed without notification to the party that is 

the target of the investigation, and this information may be used 

in any shape, form, or fashion that the interceptor would like to 

use it for? 

Ms. PARSKY. Absolutely. What this does is it applies the same 

normal rules that would apply to any criminal investigation. 

Ms. WATERS. No. No. No. But this is without notification—well. 

This is information—these are facts. It’s not as if you have an investigation to seek facts. Whatever is on the record is on the 

record. The telephone calls are there. The messages are there—

what have you. They’re accessed. I don’t know about it. You don’t 

need a warrant to get it. You can use it any way that you want 

to. Perhaps you have an investigation about terrorism. There is not 

terrorism, but you find that somebody may have committed another infraction or it could be considered a crime. Then you take 

this information and you pass it on to another law enforcement 

agency. Is that what you’re saying? 

Ms. PARSKY. Well, what I’m saying is that the same rules that 

have applied for years—— Ms. WATERS. Well, we haven’t had these rules. 

Ms. PARSKY. No, but the rules aside from the PATRIOT Act. The 

same rules that have applied to electronic mail, that have applied 

to physical records that are stored with a third party, these exact 

same rules. All the PATRIOT Act does is it says that you treat the 

same all types of stored communications, whether they are wire, 

whether they are electronic, whether they are physical or physical 

records. There’s nothing new here. 

Ms. WATERS. It is something new—— Ms. PARSKY. The same notice provisions apply. 

Ms. WATERS. Well, let me just stop you again. As I understand 

it, under those circumstances, you have a limited period of time by 

which you can engage in the so-called search or investigation. I 

may be wrong. But this could go on forever and ever and ever; is 

that correct? Is that a difference? 

Ms. PARSKY. There’s nothing in the PATRIOT Act that changes 

the length of time that it may take for an investigation to be carried through. That’s dictated by the facts of the case. But there 

are—I mean there are very significant cases. There are child pornography cases. There are places where we have rescued children 

from their molesters because of the very critical modernizations 

that were provided through the PATRIOT Act. 

Ms. WATERS. Yeah. But, I’m not talking about that. What I’m 

talking about is this: you access my telephone messages. You use 

them in any way that you want to, not just for terrorism, but like 

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ner that prior to the PATRIOT Act. You can do anything you want 

with that information. You can share it. You can give it to anybody 

you want to give it to, and you can continue to access that information for as long as you want to without having to report to a court 

or anything. Is that what you’re telling me? 

Ms. PARSKY. No. That’s not correct at all. What happens is the 

exact same standards apply whether it is a wire communication, an 

electronic communication or a physical record. You still need to go 

to a court to get a court order, a search warrant. You still need to 

provide notice with that search warrant to the same extent—— Ms. WATERS. And that’s good for how long? Thirty days? 

Ms. PARSKY. Which? The search warrant? 

Ms. WATERS. Yes. 

Ms. PARSKY. The search warrant has to be served within 10 

days, and then you obtain the evidence that is stored. 

Ms. WATERS. And how long can you look for the evidence? 

Ms. PARSKY. The search gives you access for that one period of 

time to go and collect the stored records within the scope of the 

search warrant. So you are limited by the terms of the search warrant to a particular scope. You are limited to the investigation that 

you are carrying on, and there are other protections that are built 

into our system so, in fact, you cannot go and do whatever you 

want with it or disclose it to whomever you want. There are Privacy Act implications. And you’re——

Ms. WATERS. What if you go to a provider, looking for information, and for whatever reasons, however they store that information, however they categorize that information, it’s not easily found. 

You have to—they have to do a number of things to access the information, and how long can that go on? Do they have to give you 

the information in 10 days, 15 days, 30 days? Or can you work with 

them to get you that information over the next year? 

Ms. PARSKY. Well, if it’s a search warrant, you go in and you obtain the information. If it’s a subpoena, then there is a return date 

on the subpoena, and by the return date, they need to return to 

the grand jury the records that have been requested. 

Ms. WATERS. I’m talking about search warrant now I guess. I’m 

talking about search warrant. 

Ms. PARSKY. In the search warrant, we go in and we obtain it 

ourselves. We don’t give them a certain amount of time to provide 

it to us, because then we risk that they would destroy the records. 

Mr. DEMPSEY. Yeah, actually, Congresswoman, if I may say just 

on that one point with the service provider: actually Congress 

changed the law recently to allow the service of warrants by fax. 

So they are faxed into the service provider without the presence of 

an officer there. 

I think really what we’re looking at here is sort of a confluence 

of three different things. One is the specific provisions of the PATRIOT Act that we’re talking about today, relatively narrow 

changes. But I’ve been trying to say that they interface with other 

changes in technology that need to be addressed. 

Third, they also interface with other provisions of the PATRIOT 

Act, for example, section 203, which was the subject of a hearing 

the other day, so that in terms of what can be done with this information, it’s not only limited any longer to law enforcement uses. It 

62

can be disclosed if it constitutes information about foreign affairs. 

It can be disclosed to national security, military, protective, immigration or intelligence agencies. 

Mr. COBLE. Well, the Gentlelady’s time has expired. We can continue this in the second round. 

We’ll start our second round now. 

The courts have long recognized that providers of communications services possess a fundamental right to take reasonable 

measures to protect themselves and their properties against the illegal acts of trespassers. Now, I don’t mean this to sound as subjective as it’s going to sound, but who has the reasonable expectation 

of privacy under section 217? The owner of the computer or the 

criminal or terrorist hacking into the computer? Start with you, 

Ms. Parsky. 

Ms. PARSKY. Thank you. You raise a very important point, and 

I think particularly when we’re talking about privacy rights here, 

and when we’re focusing on the provisions of the PATRIOT Act 

that are subject to pre-authorization. Section 217 is a critical provision to protect privacy. It’s a critical provision to protect the privacy not only of the service provider whose property is being unlawfully accessed. That’s what the hacker trespasser is doing. But, 

you know, we are living in a time when there are all sorts of computer hacking incidents that are subjecting consumers and individuals to the potential for identity theft. So that to the extent that 

you have this hacker then accessing the individual account holder’s 

information and providing very private information to others to 

conduct criminal activity, this is allowing law enforcement to protect those privacy rights of the consumers. 

Mr. COBLE. Which was vague prior to the act? 

Ms. PARSKY. That’s correct. 

Mr. COBLE. Let me hear from the rest of the panelists. 

Ms. MARTINEZ. Congressman, if I can follow up on that. Again, 

in working—the FBI works very hard to garner good relationships 

with e-commerce businesses so that we can get the information we 

need to go at cyber crime, and there are some incentives and disincentives for them to do it. 

One of the things that I think we’re starting to agree upon is 

that e-commerce businesses have a responsibility to protect the— both their intellectual property, but also the vast amount of personal information that they might store in the course of their normal business. 

Again, this expands their ability to be a responsible corporate citizen, to get information to us that might allow us to act quickly to 

stop an attack that might very well expose hundreds of thousands, 

millions of personal records. So again, anything we do that would 

reduce our ability, especially the timeliness of our ability, to address those types of situations when a consenting party comes to 

us and makes us aware of a problem, I think would be—would go 

against being able to protect privacy of citizens in general 

Mr. COBLE. Thank you, sir. Mr. Dempsey? 

Mr. DEMPSEY. Mr. Chairman, I agree with Mr. Martinez. But the 

question is what if they’re wrong? What if the system operator is 

wrong and points the finger at the wrong person? What if law enforcement comes in and acts over broadly? I’m saying respond to 

63

the emergency, recognize the seriousness of the computer crime, 

but build some checks and balances in that gives some redress 

when a mistake is made. 

Mr. COBLE. Professor? 

Mr. SWIRE. Thank you. It’s the expectations of privacy of all 

those phone users, e-mail users, credit card people. That’s where 

the ordinary citizen’s privacy is at stake. And right now, if the Government looks through those, either by mistake or because they 

want to look through those, they can take that information. They 

can use it in future investigations. They can use it in court. And 

the statutory suppression rule that this Committee has previously 

passed addresses that so that you have a rule that says they 

should follow the law and not be over broad in their searches. 

Mr. COBLE. Ms. Parsky, your facial response tells me you want 

to weigh in again, and you may. 

Ms. PARSKY. Thank you. Well, one thing to make clear is that 

this isn’t just about an emergency. This is the equivalent of a normal consent situation. And there are numerous, you know, vast arrays of examples where in a physical world, there is a citizen or 

a company that provides law enforcement with a tip, and we need 

our citizens to bring crimes to our attention. They don’t always pan 

out. There is always the potential that there will be access to information about individuals who don’t end up having criminal culpability. 

Mr. COBLE. I thank you for that. 

Ms. PARSKY. Thank you. 

Mr. COBLE. Let me beat the red light by putting another question to Mr. Dempsey. 

Mr. Dempsey, in your written testimony, you stated that section 

220 of the USA PATRIOT Act makes obvious sense. Elaborate in 

some detail on that if you will. 

Mr. DEMPSEY. Well, I think we do have nationwide communication systems and for a crime in California the evidence may be— the electronic evidence may be stored in Virginia. 

It is appropriate I think for a judge in California to issue that 

warrant to be served in Virginia, to send the evidence back to California where the locus of the investigation is. My only concern is 

that a little bit tips the balance in the other direction, and if the 

service provider gets a warrant that looks over broad, that looks 

burdensome, that may sweep too broadly or it may be unclear, the 

person in California issuing the warrant may not have understood 

the computer network of the person in Virginia. 

The person in Virginia, they want to do the right thing. But they 

also want to be careful. They should have the opportunity to go to 

a judge in Virginia or in California, but certainly in Virginia where 

they are and say we want to cooperate. We will give it over, but 

we—it should be focused a little bit more. 

Mr. COBLE. I got you. I thank you. My time has expired. The 

Gentleman from Virginia. 

Mr. SCOTT. Thank you, Mr. Chairman. We keep talking about 

how you’re going to use the information as the kind of violation of 

privacy that you actually use it. Some of us may think that just 

looking at, because we’re not talking about robots. We’re talking 

about somebody who could be your neighbors and people are kind 

64

of thinking terrorism. Let’s kind of think mental health records and 

medical records that people—that your neighbors may be looking at 

if they happen to work for the FBI. And when you think of it in 

that nature, I mean sometimes you don’t want people looking at 

your medical records and your mental health records, and your private communications with your friends, colleagues, or spouse. You 

may not want the—your neighbors to know that you’re having marital problems and all that kind of stuff. So just the idea that you 

get to look at it, I mean. And then after you get to sharing it all— and we’re not even getting into that—but some people are going to 

be looking at your very private communications. And you don’t 

know going in what’s going to pop out of that e-mail. 

Ms. MARTINEZ. If I may address that very example, I think 

health records is a good one. There have been intrusions into medical facilities and health records have been compromised. In working a computer intrusion investigation, it would be very important 

for us to determine what type of data was targeted. And it may 

very well be that we determine that very specific health records of 

very specific individuals were targeted. But without us being able 

to do the investigation and drill to that level of detail we wouldn’t 

know and that would impede our ability to work that case back to 

identify——

Mr. SCOTT. You don’t know—you don’t know when you start 

reading your—I mean it—doesn’t the e-mail from me to my doctor 

or from a person to his priest doesn’t start off by saying personal 

information enclosed. Caution. Warrant required. You just start 

reading and start tripping over all this information that could affect—it could be your neighbor. You know you didn’t know that 

about your neighbor. 

Mr. SWIRE. Congressman, can I—one of the things that the Government’s position has been if the record is stored, then you’re 

pretty much out of luck. You’re under much less luck than you 

used to be. Once it’s stored, there’s no constitutional protections— reasonable expectation to privacy—you’ve handed that over to a 

third party. Once it’s stored, you’re under the Stored Communications Act at best. You’re not getting wiretap protections anymore. 

So they’re saying once these things get stored—— Mr. SCOTT. And you can do it by subpoena. You don’t even need 

a search warrant? Is that right? 

Mr. SWIRE. It depends on the time, and they have different 

things, but a lot of times you can do it through a grand jury subpoena, through this 2703(d) order, or you can do it through a 

search warrant. The Government gets to choose. 

Mr. SCOTT. Now, we keep talking about these delayed notices. If 

you trip over this embarrassing information about your neighbor 

and don’t use it and don’t notify anybody, there are, in fact, no 

sanctions if you’re not going to use the information; is that right? 

Ms. PARSKY. Well, if I may, I think one important thing to keep 

in mind here, particularly when we’re talking about section 217 is 

that we’re talking about, number one, the fact that when you have 

these communications that are going on on a service provider’s network, there is already the ability for the service provider to monitor those communications. So regardless of whether law enforcement is involved, you have the service provider monitoring. But in 

65

section 217, we’re talking about the additional situation where 

these private records, whether they be, you know, medical records 

or personal notes to a neighbor, those are being also accessed by 

a trespasser. 

So the additional insertion of law enforcement into that calculus 

actually adds more protections because law enforcement——

Mr. SCOTT. But you’re kind of getting over broad——

Ms. PARSKY. —is subject to other restrictions that criminals are 

not. 

Mr. SCOTT. Do you need a trespasser to trigger all of these 

search warrants and subpoenas? 

Ms. PARSKY. Section 217 is specific to hacker trespassers and 

that is where the system—the system provider—the service provider can—they have the ability to monitor the communications. 

They can provide the consent to law enforcement to assist them in 

protecting their own property. 

Mr. SCOTT. So if AOL is listening into—is reading all of my emails, then they can invite law enforcement to look over their 

shoulder as they look at my e-mails? 

Ms. PARSKY. Rather than their collecting it and providing it to 

law enforcement afterwards, when law enforcement doesn’t have 

the ability to help protect them and to help solve the crime. 

Mr. SCOTT. If AOL has a privacy agreement with me, then they 

can’t do that. 

Ms. PARSKY. That’s correct. That’s a contractual matter. 

Mr. SWIRE. AOL can read your e-mail only for the purpose of protecting their service or their rights or for purposes of protecting the 

security of their system. But I think we’ve sort of shifted over a little bit—mushed up 209 and 217. Two seventeen is limited to trespasser cases. 209, the warrant or subpoena access, is for all investigations. And I think though one of the issues you were getting at 

with the question of the medical records, et cetera, the real-time 

interception cases have almost a two-layered protection. You get 

the warrant, which has the particularity required by the fourth 

amendment giving the Government the right to get into somebody’s 

communications stream. 

The law imposes what is almost an extra protection, which is the 

minimization requirement, which says that you can only record 

specifically what is incriminating. There is no real minimization requirement on the stored records side. The minimization requirement is in title III, not on the Stored Records Act. 

So one you’re in there and particularly because you don’t know 

what you’re getting until you actually open it. You don’t know 

whether it’s relevant or not until you actually look at it. The Government I think does acquire a lot of information in a stored capacity, bring it back, sit there, open it, go through it, and at that point 

there, they are looking at and they have in their possession a lot 

of material that turns out to be extraneous. 

Mr. SCOTT. Mr. Chairman, let me just say that one of the problems after you get in there and start reading and reading if you 

do not use the—if you don’t want to use the material, there is not 

requirement—there’s no sanction for continuing to read. 

Mr. DEMPSEY. Not really. 

66

Mr. SCOTT. With a requirement of a warrant going in, you don’t 

know what you’re going to get so if you mess up, if you break into 

somebody’s house and get—find the drugs, you can’t use the drugs 

under the exclusionary rules. So you have no incentive to break in. 

Under this, with this delayed notice and all that, if you find some 

goodies, you can find the notice. But if you don’t find anything, 

there is no sanctions. 

Mr. DEMPSEY. Right. 

Mr. COBLE. Well, the Gentleman’s time has expired. Ms. Parsky, 

you and Mr. Martinez want to weigh in before I recognize the Gentleman from Massachusetts? 

Ms. PARSKY. I think we both want to make a couple of brief comments. I thank you very much. 

Mr. COBLE. And briefly if you can because we’ve got to move 

along. 

Ms. PARSKY. Very briefly. But the one thing that I think is important to understand is that if you have a search warrant, there 

is very specific requirement that it be relevant to criminal activity 

and that there be a defined scope for that search warrant. So you 

don’t go in and you’re able to inspect or search or seize anything 

you want. You go in within the scope of the search warrant and 

there is the ability for someone to challenge whether, in fact, you 

stayed within the scope. 

Mr. SCOTT. Yes, but that doesn’t apply to a subpoena? 

Ms. PARSKY. But that applies to a search warrant whether it’s 

for physical records or electronic records and to the same extent 

that you might have a search warrant to search physical files and 

you may have to open up the file to see if what’s in there is within 

the scope of your search warrant, the same applies to the electronic 

world. I think Mr. Martinez. 

Mr. MARTINEZ. And I think to follow up on that. Again, I’ll make 

the analogy with the physical seizure of health records. You may, 

in the course of an investigation, try to determine if there are victims that are part of the health organization’s records, and you 

may see some information about someone’s very, very personal 

health profile. Again, if it doesn’t go the specific violation that I’m 

trying to prove or determine elements of, I don’t know that I would 

have a positive requirement to then go back and tell everyone 

whose record I looked at that I set aside because it wasn’t pertinent to my investigation that I looked at your health record. 

We’d go on to the next one and aggregate evidence and move on 

from there. 

Mr. SWIRE. May I have one sentence just to follow? Under new 

technology, we’re storing lots and lots more things than we used to. 

That may mean the laws about stored records deserves some reexamination. 

Mr. COBLE. The Gentleman’s time has expired. The Gentleman 

from Massachusetts, Mr. Delahunt. 

Mr. DELAHUNT. Yeah. I think that goes to—you know, and I appreciate the distinctions obviously between electronic records and 

physical records. 

But people understand a physical record. As I indicated earlier, 

there’s a lot of us that really can’t put our—we don’t grasp the exVerDate 0ct 09 2002 09:14 Jun 27, 2005 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\042105\20710.000 HJUD1 PsN: DOUGA
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tent of and the volume of electronic records. That’s where the 

unease of the American people are in terms of their privacy. 

And I think that was the debate and the discussion, that’s what 

we have to remember, and we have to—if we’re going to—and I 

think we should. Okay. If we’re going to give law enforcement the 

updated means to conduct investigations, at some time we have to 

do this in a way that’s thoughtful enough to balance the concerns 

that Americans have about privacy. And the best we can do is, you 

know, in my judgment, is transparency and notification. If we do 

that, even though it’s burdensome, it doesn’t impede the investigation. 

You know, Mr. Martinez, I mean everything that’s done post the 

investigation by virtue of that definition doesn’t impede the Government from, you know, fulfilling its role in terms of protecting 

the American people or, you know, enhancing public safety. I mean 

that’s what I’m suggesting here. 

Mr. MARTINEZ. Well, I want to make one point about the emerging new technologies. I think as we look at technologies emerge, we 

have to be very careful to determine whether that technology is 

really unique. Does it really present a set of circumstances that did 

not exist before or that hasn’t been analyzed and very, very carefully thought through before, because—just because it is a new 

technology, it doesn’t necessarily mean that there isn’t already an 

existing paradigm in the law to handle it. 

So I wouldn’t want to make the assumption—you know, when we 

transition from an analog telephone to cellular telephone—you 

know, we still had conversations going over it. 

Now, there were a lot of implications to that. The technology was 

indeed different, but I think much of the circumstance was similar 

to what existed before. 

Mr. DELAHUNT. But it’s the speed. 

Ms. PARSKY. Well, I think as an important——

Mr. DELAHUNT. The problem you have in terms of the transmission, the communication itself is so quick and so instantaneous, 

you need to be upgraded. Okay. And I think what we have to do 

is look at concomitant ways to again ensure that those privacy 

rights and—if there’s anything about the American people and in 

terms of the essence of our democracy it’s the right to privacy. If 

you don’t have privacy, that’s the beginning in my judgment of totalitarianism. Okay. 

And that’s why Americans emphasize so much this checks and 

balances issue and this transparency. And that I think is the 

framework, the mind set that should come to this. Before my time 

runs out, what I’m going to do is adopt the questions that were presented by Prof. Swire as mine. And I’m asking you, and I’m going 

to put this on you, Ms. Parsky, to respond to those questions in 

writing. In the past, under other Attorneys General, I’ve made 

those requests. Somehow it gets lost in the black hole. But this is 

a new Attorney General, a new Administration. I would hope that 

those questions, which are now Delahunt’s questions, okay, would 

be responded to and, you know, please would you direct the answers to those questions to me? I’ll give Mr. Coble and Mr. Scott—

you can Cc: them. Right? But I think they’re good questions, beVerDate 0ct 09 2002 09:14 Jun 27, 2005 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\042105\20710.000 HJUD1 PsN: DOUGA
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cause I think they go to the clarify—I think really what some of 

this is about is clarification. 

Ms. PARSKY. If I may just briefly respond quickly or follow up on 

what Mr. Martinez said. I think that it’s important to recognize 

that there are still laws that we can apply to these new and complicated technologies. And as Professor Swire says, yes, with, you 

know, Internet protocol and with packets of information, it may be 

easier to store information. That doesn’t mean that it’s authorized 

to store information. So even if a network administrator may be 

able to store it, the same rules still apply in terms of what kind 

of contractual relationship, what kind of consent those working 

under that network administrator have entered into and that 

have—— Mr. DELAHUNT. And I understand that, and I’m sympathetic, and 

I understand that. 

You know, I think what we hear from Mr. Scott in terms of his 

concerns about mental health records. I think we need to explain, 

you know, the concept of minimization and what it means whether 

we’re intercepting a telephone conversation and how the concept of 

minimization in terms of review of records applies to electronic 

records. 

Mr. DEMPSEY. Congressman, I think that one of the things you 

mentioned was speed and volume. And it goes to Representative 

Scott’s questions. Well, I remember a couple of years ago, FBI Director Freeh was testifying in support of his budget request and 

talking about how the FBI needed more money to process the data 

that they were collecting, and he cited one case—— Mr. DELAHUNT. Well, didn’t he get a new computer for that? 

Mr. DEMPSEY. Well, different issue. Different issue, Congressman. 

One case the FBI seized enough electronic information that if it 

were printed out, it would have filled the Library of Congress one 

and one half times over. That was FBI Director Freeh’s testimony. 

That was the volume of stored records that were available to them 

in that one investigation. 

Mr. COBLE. The Gentleman’s time has expired. The Gentlelady 

from California, Ms. Waters. 

Ms. WATERS. Thank you very much, Mr. Chairman. First, I’d like 

to ask unanimous consent to enter my statement into the record. 

Mr. COBLE. Without objection. 

Ms. WATERS. And secondly, I think the discussion was going in 

a direction that I have great interest. I think that we all have a 

very special need to believe that we have control over our lives, and 

it is very disconcerting to think about people having access to every 

tidbit of information about your life because they are able to store 

your telephone conversations, your e-mail messages, and on and on 

and on. It’s just pretty overwhelming. 

And so I think we certainly need to understand the new technology and who has the ability to store what and for how long. And 

whether or not, you know, there is certain kind of permission needed in some cases to be able to give that information or share that 

information. 

And I do think that perhaps we need to look at this new body 

of law relative to this new technology so if nothing more comes out 

69

of it then disclosure to the client. We get credit reports. I mean we 

force credit card companies to give us a report every year to tell 

us what they’re holding and what they’re advising people about us. 

For our medical records, our doctors have to have written permission from us to give it to somebody, I just think we need to find 

out what—well, we need to develop this body of law that will help 

us feel we have some control. I recognize the need for, you know, 

the criminal justice system to be able to access certain things 

through warrants and subpoenas, but I do think I have a right to 

know whether or not my computer or company or my server is 

holding information and what form it’s in, and how long it’s held. 

Some of those things I think are just very basic to being able to 

have some kind of contractual relationship with those who are 

holding significant information about you. 

I think I would feel better if I just had disclosure, because I understand that the technology works in different ways and we don’t 

know what technology is being used by what companies. Then I 

may have a right to choose a particular company because they 

don’t keep certain information or they discard information after a 

certain period of time. So I think we should——

Mr. COBLE. Would the Gentlelady suspend for a moment? 

Ms. WATERS. Yes. 

Mr. COBLE. Reverting to Mr. Delahunt’s suggestion, the record 

will remain open for 7 days folks so we can have exchange and this 

will be ongoing. This is not the day of finality on this matter by 

any means. 

Ms. WATERS. So I—let me ask, Mr. Delahunt, when you referred 

to Mr. Swire’s questions, I don’t know what those were, but are 

they included in——

Mr. DELAHUNT. They are an appendix to his testimony. 

Ms. WATERS. Do they relate to the concerns that I——

Mr. DELAHUNT. Some of them do. 

Ms. WATERS. Just, and if I may, I have a few more seconds left 

here, Mr. Swire. Could you comment on what I tried to communicate just a few moments ago about possible disclosure or having 

some choices in the selection of companies that I deal with, et 

cetera, et cetera. 

Mr. SWIRE. I have two comments. One is when it comes to stored 

records, this Committee in the fall of 2000, in H.R. 5018, passed 

I think unanimously or almost unanimously a number of provisions 

about stored records, and there’s a Committee report about that. So 

that might be a place to look where Republicans and Democrats 

worked together that year. 

On disclosure, that comes up to issues of should every company 

have privacy policies they communicate out there. We do have most 

companies with privacy policies. There’s no Federal laws that say 

they have to do that, and a lot of companies have over time watered those down in the last three or 4 years because they don’t 

want to be constrained if they feel like using data later. And I 

think if you look at those privacy policies in general they’re less detailed and less full today than they were 3 or 4 years ago, and that 

might be something for people to look at also. 

70

Ms. WATERS. Well, that’s a good idea. Let me just say based on 

some of the recently developed laws, we are supposed to be given 

an opportunity to opt-in or opt-out—— Mr. SWIRE. Yes. 

Ms. WATERS. —on information that’s shared about us. But I don’t 

think it gets to the stored information at all. I’ll go back and take 

a look at that. 

Mr. SWIRE. For your medical data and financial data, the stored 

records at the bank or the hospital, those are subject to some of 

those choices the Congress put into law. 

Mr. DEMPSEY. Although in every case, those provisions have law 

enforcement and intelligence exceptions. 

Ms. WATERS. Oh. 

Mr. SCOTT. What do you mean by an exception? 

Mr. DEMPSEY. That basically it doesn’t matter what the privacy 

policy says. When the Government comes in with whatever compulsory process is permitted, whether it’s a warrant, a subpoena or a 

court order, the privacy policy evaporates. 

Ms. WATERS. But if I got disclosure, if I understand what it is 

you are storing, and, you know, how you do this, how much information you hold on to for what periods of time, I may have some 

options about whether or not I want to deal with you or I may 

want to handle my business in a different way. For example, let 

me just tell you here in the Congress of the United States, you 

know, people keep in their computers, you know, all of the daily 

calls. They keep telephone numbers. They keep everything. Well, 

you know, some people may want to decide I don’t want that in the 

computer for whatever reasons. I want to use some old systems. 

And I knew and understood, which I’m going to ask now, what is 

being stored for how long in the systems that we use, then I may, 

you know, make some different decisions. 

Mr. COBLE. The Gentlelady’s time has expired. We have the Lady 

from Texas has just joined us. We will include, professor, your 

questions in our post-hearing letter. And that can be addressed 

then. 

The Gentlelady from Texas is recognized for 5 minutes. 

Ms. JACKSON LEE OF TEXAS. Thank you very much, Mr. Chairman. To the panelists, thank you. We are at the same time in a 

Homeland Security mark up and so I thank you for your testimony 

and apologize for my tardiness in this hearing. 

But let me just take the opportunity. This hearing deals with 

certain sections of the PATRIOT Act for reauthorization that are 

not necessarily that controversial. But I am going to take this opportunity to press some points that may be somewhat more global. 

And that is that the idea of the PATRIOT Act, of course, was to 

ensure safety or to correct some of the ailments that many thought 

could cure the tragedy that we faced on 9/11. Some of the weaknesses as we moved into cyber security and technology. We just 

passed a bill in Homeland Security to establish an Assistant Secretary in the Homeland Security Department for Cyber Security. 

Again, the whole issue of integration if you will to provide more security for the Nation. 

I raise the question, however, as an opponent of the PATRIOT 

Act and a huge skeptic of the reauthorization of any of the sections, 

71

meaning that I want close scrutiny is where we are in 2005. Some 

will say that the aviation industry is not that much safer. Questions are being raised about our security personnel as we—our 

screeners. It’s certainly out of the jurisdiction of this Committee, 

but I think the main question is whether we have been made safer 

by downsizing on some of our civil liberties and the ability, of 

course, for unreasonable search and seizure. 

I think my colleague from California made the point that now 

vastness is a vast wasteland dealing with e-mail and I believe that 

we have lost the touch of writing the written letter, if you will. And 

so cyber security has become our means of communication. I am 

concerned with even the minimal, if you will elimination or impacting on the use of e-mails and the privacy of individuals and the intrusion by law enforcement entities on the basis of homeland security or national security. 

So I’m going to start with Mr. Swire in terms of putting you on 

the immediate hot seat for this global question that I’ve asked and 

that is are we safer and is the—are we necessarily having to do 

this—having to reenact these provisions on the PATRIOT Act to 

ensure that safety? 

Mr. SWIRE. That feels pretty hot. Are we overall safer? There was 

certainly some provisions of the PATRIOT Act that I supported 

when I was in the Clinton Administration and that were sensible 

updating to take account of new technology. 

I think that when I think of safer and downsizing civil liberties, 

the one point I stress is that the current law seems to be once the 

record is stored, once it’s held at the ISP or the bank or something 

like that, you’ve lost all your constitutional protections of reasonable expectation to privacy. I think that hasn’t been fully understood by a lot of people; that those stored records that we’ve heard 

so much about today, once they’re out there, the constitutional protections are gone. That means Congress is the only place that 

writes those privacy rules. 

And so this Committee and the rest of the Congress has to think 

about if the courts aren’t going to do it, what’s the Congress going 

to do to right the law so that we have safety and civil liberties 

going forward. 

Mr. DEMPSEY. Congresswoman, we are safer, but not safe. 

Progress has been made, but still a lot more needs to be done. 

On the question of cyber security, I think that clearly the PATRIOT Act focuses almost exclusively on after the fact prosecutorial efforts. Clearly, a lot more needs to be done on building secure systems. 

But I think finally the question of civil liberties is I believe, and 

I think there should be pretty wide agreement. If you look at the 

9/11 Commission Report, if you look at the Gilmore Commission 

Reports, the Markle Task Force, what we should be seeking here 

is not a trade-off, not a surrender of some civil liberties in order 

to purchase some security, not a trade-off, but a balance. But a little bit here I hear the Justice Department saying give us more 

power to deal with new technology, but don’t adjust the privacy 

protections to deal more—with the new technology. The technology 

is changing. We need to change the laws in ways that make it easier for the Government, and there’s some validity to that. But don’t 

72

change the law in ways that would improve the checks and balances. And I think we need those checks and balances. I think they 

do not hurt us. 

Our rights are not what is wrong with our counter terrorism approach. We need these checks and balances. They can be effective 

with all the authorities we’ve talked about today. 

Ms. JACKSON LEE OF TEXAS. And this is a very strong point that 

you made, Mr. Chairman. I think—I hope the halls of this—or the 

walls of this Committee room have heard Mr. Dempsey and Mr. 

Swire and not to ignore Mr. Martinez and Ms. Parsky. I’m sure 

that I’ll be able to read your testimony, but my point is the importance of privacy and balancing our national security. 

I yield back. 

Mr. COBLE. I thank the lady. Mr. Martinez, Mr. Dempsey referred to DOJ, either one of you want to respond to that? 

Ms. PARSKY. Well, I appreciate the opportunity, and I would like 

to just respond briefly that the Justice Department’s position is 

that we should be able to bring our law enforcement tools up to 

speed with modern technology, while preserving all the checks and 

balances and the constitutional protections and other protections 

that are built into our criminal procedures. And all we are looking 

to do is apply those exact same checks and balances protections of 

privacy to the modern world. 

Mr. COBLE. Well, this——

Mr. SCOTT. Mr. Chairman? Can I ask——

Mr. COBLE. Yes. 

Mr. SCOTT. —one. There’s one point I——

Mr. COBLE. I will. But I say to my friend from Virginia——

Mr. SCOTT. It will be quick. 

Mr. COBLE. Well, if you can, ’cause I got 50 constituents who are 

waiting on me for about 10 minutes now. So, Mr. Scott. 

Mr. SCOTT. Well, if AOL doesn’t care about my privacy, what—

and they give anybody—they give Government permission, where 

does it say—am I without safeguards, is that what I understand? 

Mr. SWIRE. That’s section 217. If AOL invites the Government in, 

and the Government is supposed to only look at the hackers, but 

they look at everyone else, right now they get to use all that evidence in court and in future investigations. 

Mr. SCOTT. Or look at it, because the question, the point was 

made that if you’re in the doctor’s office, you can look at the file. 

You don’t know what’s going to be in it when you open it up, but 

you know what file you’re looking at. You’re not—you didn’t have—

you’re not in the doctor’s office looking at all the files. 

Thank you, Mr. Chairman. 

Mr. COBLE. I thank the Gentleman, and I thank the panelists. 

This has been a very worthwhile hearing it seems to me. As I said 

before, the record will remain open for 7 days, and I again thank 

the witnesses for your testimony. The Subcommittee very much appreciates this. 

In order to ensure full record and adequate consideration of this 

important issue, the record will be left open for additional submissions for 7 days. Also any written questions that a Member wants 

to submit should be submitted within that same 7-day timeframe. 

73

This concludes the oversight hearing on the ‘‘Implementation of the 

USA PATRIOT Act: Crime, Terrorism and the Age of Technology.’’ Thank you for your cooperation and your attendance, and as well 

as those in the audience and the Subcommittee stands adjourned. 

[Whereupon, at 11:49 a.m., the Subcommittee was adjourned.] 

(75)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, SUBCOMMITTEE

ON CRIME, TERRORISM, AND HOMELAND SECURITY

Thank you, Mr. Chairman, for scheduling this hearing on USA PATRIOT Act provisions to investigate and prosecute crimes through the use of electronic evidence. 

Section 209 of he Act references ‘‘Seizure of Voice Mail Messages Pursuant to Warrant.’’ However, that section authorizes access to much more than voice mail and 

authorizes access through ways other warrants, such as by administrative, grand 

jury and court issued subpoenas, under the appropriate circumstances. And they can 

be ‘‘sneak and peek,’’ whether warrants, court subpoenas or administrative subpoenas. So we are talking about a section that is not only misleading relative to the 

breadth of the police powers it authorizes, but a title that is also deceptive as to 

the extraordinary nature of the powers. 

Quite frankly, Mr. Chairman, the more I review the extent of the powers we have 

extended to law enforcement through provisions such section 209, the more I am 

pleased with our decision to provide for a sunset on some of these powers in order 

that we may review in earnest what we have done, and so that the law enforcement 

authorities who get access to our private information pursuant to these powers, is 

aware we will be reviewing them. This is a section whose original purpose was to 

protect our electronic data against intrusion. When I see the ‘‘mack truck’’ hole we 

carved out of that purpose for law enforcement access, and the limitations on traditional methods of holding law enforcement accountability such as prior notice with 

right to quash, and oversight of a court through return reports to the court within 

a certain number of days, the more I am convinced that sunset review in this area 

is absolutely essential to our oversight responsibilities to the public. And this is especially true in the areas of electronics and general technology, given the growing 

impact of technology on our society. I have the same concerns about Section 217, 

which allows an ISP to give law enforcement wide latitude to look at private electronic communications without court oversight or review. Its one thing to call law 

enforcement to look at a trespass that is occurring; its another thing to call in law 

enforcement to look o see if there is anything suspicious going on, prior to a trespass 

occurring. And while I can understand the efficiency and exigency arguments for a 

nationwide search warrant authority in the arena of electronic communications, I 

am also concerned with the sufficiency of the notice and, right to challenge and 

oversight of such warrants. 

For law enforcement, the good news in what I am saying is that I think these 

powers should be available in appropriate circumstances, so I am not calling for 

sunsetting them. However, for the public’s protection of their privacy as well as 

their safety, I am saying that we need to look more precisely our notice, oversight 

and reporting requirements for these powers, and make appropriate adjustments. 

We should also continue this kind of oversight through sunsets, where we have to 

periodically look at the use of these powers in an arena of evolving technologies, and 

where law enforcement is aware that the use of these powers will need to be scrutinized and justified. So, Mr. Chairman, I look forward to the testimony of our witnesses on how we might best do that, and to working with you on implementing 

their recommendations. Thank you.

76

PREPARED STATEMENT OF THE HONORABLE MAXINE WATERS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Mr. Chairman, sections 209, 217, and 220 of the Patriot Act, violate Americans’

privacy rights and civil liberties and should not be renewed. None of these sections 

are limited in their application—they can be used for any kind of criminal investigation that the DOJ sees fit, and are not limited to terrorism. 

Mr. Chairman, section 209, the ‘‘Seizure of Voicemail Messages Pursuant to Warrants’’ of the Patriot Act allows law enforcement agencies, in some circumstances, 

depending on the amount of time the messages have been stored, to seize American 

citizens’ stored voicemail messages without a search warrant or subpoena. Section 

209 also is not subject to the exclusionary rule. Therefore, if law enforcement illegally seizes an American citizen’s voicemail messages, the illegally seized voicemails 

still can be used as evidence against a person in court. Since section 209 has no 

notice requirement, the citizen would not even know she was the subject of surveillance, until she is brought to court. 

Mr. Chairman, even if law enforcement gains access to an American citizen’s 

voicemail in adherence to section 209, there are no limitations as to how the information will be used or publicized. This power far overreaches into the constitutionally guaranteed right to privacy. 

Mr. Chairman, section 217, or the ‘‘Interception of Computer Trespasser Communications’’ section, is just as harmful as section 209. Under section 217, if a computer service provider claims that an individual is ‘‘trespassing’’ on its network, law 

enforcement is free to intercept that individual’s private communications without 

permission from a judge. This section fails to address the question of, who qualifies 

as a ‘‘trespasser.’’

Mr. Chairman, the DOJ would like Americans to believe this section is limited 

to computer hackers. However, section 217 never specifically describes a ‘‘computer 

trespasser’’ as a computer hacker. The definition given is ‘‘a person who accesses 

a protected computer without authorization and thus has no reasonable expectation 

of privacy, in any communication transmitted to...the protected computer.’’ This definition leaves open several definitions as to what constitutes a ‘‘computer trespasser.’’

Mr. Chairman, this vague definition is dangerous because there is no judicial 

oversight or notice requirement in section 217. Therefore, this section, like many 

other Patriot Act provisions, allows law enforcement to freely and secretly spy on 

Americans, with no checks or supervision from a judge to make sure this power is 

not abused. Section 217 places all power within the hands of law enforcement and 

the system owner or operator. 

Mr. Chairman, section 220, or the ‘‘Nationwide Service of Search Warrants for 

Electronic Evidence’’ section, amends the Federal Rules of Criminal Procedure to expand the jurisdictional authority of a court to authorize search warrants outside of 

the court’s judicial district in a criminal investigation. This section allows law enforcement to pick and choose which court it can ask for a search warrant. This 

leaves open the possibility that law enforcement agents 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 does not 

satisfy the strict requirements of the Fourth Amendment of the Constitution. This 

section also has no notice requirement. 

Mr. Chairman, only local judges and courts should be allowed to grant warrants 

for investigations falling within their jurisdictions. Judicial oversight is only effective if the presiding judge is within the jurisdiction where the search and/or investigations are taking place. Local judicial oversight is a key check against unreasonable searches and seizures. Also, Americans have the right to due process and 

should be notified if they, or their property, are the subject of a search warrant or 

criminal investigation, even if the notice is issued after the search or investigation 

has commenced. 

Mr. Chairman, absent a clear demonstration from law enforcement that these new 

surveillance powers are necessary, sections 209, 217, and 220 should be allowed to 

expire. These sections of the Patriot Act threaten the basic constitutional rights of 

millions of Americans. 

I yield back the balance of my time.

77

SUBMISSION BY PETER SWIRE ENTITLED ‘‘THE SYSTEM OF FOREIGN

INTELLIGENCE SURVEILLANCE LAW’’


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