THE U.S. PATRIOT ACT of 2001 

CHANGES TO ELECTRONIC 

SURVEILLANCE LAWS 

Bryan R. Lemons 

Branch Chief

Shortly after the terrorist attacks 

that occurred on September 11, 2001, 

Congress passed the “Uniting and 

Strengthening America by Providing 

Appropriate Tools Required to Intercept 

and Obstruct Terrorism,” commonly 

referred to as the “U.S. Patriot Act of 

2001.” The purpose of this article is to 

highlight some of the resulting major 

changes in electronic surveillance laws. 

This article is not intended to be a 

comprehensive summary of all of the 

changes brought by the legislation. 

TERRORISM AS A PREDICATE 

OFFENSE

Title 18 U.S.C. § 2516 lists the 

predicate offenses for which wire, oral, or 

electronic intercept orders may be 

authorized, upon a showing of probable 

cause to believe the offense is being 

committed. “The offenses that may be the 

predicate for a wire or oral interception 

order are limited to only those set forth in 

... § 2516(1).”1 With passage of the “U.S. 

Patriot Act,” crimes “relating to terrorism” 

have now been made predicate acts for 

wire or oral interception orders, as have 

offenses “relating to chemical weapons.”2

 

1 United States Attorney’s Manual, Title 9, 

Criminal Resource Manual 28. 

2

 Title 18 U.S.C. § 2516(1)(q) 

PEN REGISTERS AND TRAP AND 

TRACE DEVICES

Title 18 U.S.C. §§ 3121 – 3127 

outline the federal requirements for use of 

pen registers and trap and trace devices.3

 

Prior to passage of the “U.S. Patriot Act,” 

the statutory definitions of these two 

devices did not explicitly allow for their 

use to capture Internet communications, 

such as capturing the “To” and “From” 

information contained in an e-mail header. 

The “U.S. Patriot Act” modified these 

definitions, and they now expressly 

authorize utilization of pen registers and 

trap and trace devices on Internet 

communications. Further, Title 18 U.S.C. 

§ 3123(a) previously allowed for the 

issuance of a court order authorizing a pen 

register or trap and trace device only 

“within the jurisdiction” of the issuing 

court. The “U.S. Patriot Act” now allows 

for a court to issue a single order that is 

valid “anywhere within the United 

States.”4

VOICE MAIL STORED WITH THIRD 

PARTY PROVIDER

Title 18 U.S.C. § 2510(1) included 

within its definition of “wire 

communication” the phrase “any 

electronic storage of such 

communication.” Additionally, the 

Electronic Communications Privacy Act 

of 1986 (ECPA) addressed law 

enforcement access to stored “electronic” 

 

3

 “A pen register records outgoing addressing 

information (such as a number dialed from a 

monitored telephone), and a trap and trace device 

records incoming addressing information (such as 

caller ID information).” Searching and Seizing 

Computers and Obtaining Electronic Evidence in 

Criminal Investigations at 148, Computer Crime 

and Intellectual Property Section, Criminal 

Division, Department of Justice (2001) 

4

 Title 18 U.S.C. § 3123(a)(1) 
communications held by a third party 

provider, but not stored “wire” 

communications. Thus, voice mail stored 

with a third party provider could not be 

obtained by a law enforcement officer 

with a search warrant (as could “electronic 

communications”), but required a Title III 

interception order. The “U.S. Patriot Act” 

amended the ECPA, and now authorizes 

law enforcement officers to use search 

warrants to compel disclosure of voice 

mail stored with a third party provider. 

This provision of the “U.S. Patriot Act” 

will expire on December 31, 2005. 

COMPUTER HACKING 

INVESTIGATIONS

Prior to passage of the “Patriot 

Act,” investigators were not permitted to 

obtain interception orders for wire 

communications in computer hacking 

investigations. Title 18 U.S.C. § 2516(1) 

has now been amended to include 

violations of Title 18 U.S.C. § 1030 

(Computer Fraud and Abuse) as predicate 

offenses. However, this provision of the 

“U.S. Patriot Act” will expire on 

December 31, 2005. 

OBTAINING INFORMATION FROM 

THIRD PARTY PROVIDERS WITH A 

SUBPOENA

Title 18 U.S.C. § 2703 outlined the 

information a law enforcement officer 

could obtain with a subpoena from a third 

party provider of electronic 

communication (e.g., AOL). Termed 

“basic subscriber information,” it included 

a customer’s name, address, local and long 

distance telephone toll billing records, 

etc.5

 Other types of information, such as 

credit card numbers used, could only be 

obtained with a search warrant or § 

 

5

 Title 18 U.S.C. § 2703(C) 

2703(d) court order. The “U.S. Patriot 

Act” expands “basic subscriber 

information” to now include “means and 

source of payment for such service 

(including any credit card or bank account 

number),” “records of session times and 

durations,” and “telephone or instrument 

number or other subscriber number or 

identity, including any temporarily 

assigned network address.”6 

SEARCH WARRANTS FOR WIRE 

AND ELECTRONIC 

COMMUNICATIONS HELD BY 

THIRD PARTY PROVIDER

Prior to passage of the “U.S. 

Patriot Act,” the ECPA required that law 

enforcement officers use a search warrant 

to compel a third party provider of 

electronic communications to disclose 

communications in storage “for one 

hundred and eighty days or less.”7

 

Pursuant to Rule 41 of the Federal Rules 

of Criminal Procedure, only a court in the 

district where the actual communication 

was located could issue this search 

warrant. Now, any court “with 

jurisdiction over the offense under 

investigation” can issue a nationwide 

search warrant for communications stored 

by third party providers, regardless of 

where the communication is physically 

located. And, as noted in paragraph III, 

above, “wire communications” are now 

covered by this rule. This provision of the 

“U.S. Patriot Act” will expire on 

December 31, 2005. 

DELAYED NOTICE OF SEARCH 

WARRANTS

Title 18 U.S.C. § 3103a has been 

amended to permit law enforcement 

 

6

 Title 18 U.S.C. § 2703(c)(2) 

7

 Title 18 U.S.C. § 2703(a) 
officers to delay notice of the execution of 

a search warrant in special circumstances. 

Specifically, § 3103a permits notice to be 

delayed in situations where “the court 

finds reasonable cause to believe that 

providing immediate notification of the 

execution of the warrant may have an 

adverse result.” An “adverse result” is 

defined as (a) endangering the life or 

physical safety of an individual; (b) flight 

from prosecution; (c) destruction of or 

tampering with evidence; (d) intimidation 

of potential witnesses; or (e) otherwise 

seriously jeopardizing an investigation or 

unduly delaying a trial.”8

 

8

 Title 18 U.S.C. § 2705(a)(2)