Security and Freedom Ensured Act (SAFE Act)(H.R. 1526) and Security and Freedom Enhancement Act (SAFE Act)(S. 737): Section By Section Analysis
Released: 2005-05-09T00:00:00

Introduction

Somewhat different SAFE Acts have been introduced in both the House and Senate: S. 737 , the Security and Freedom Enhancement Act of 2005 (introduced by SenatorCraig) and H.R. 1526 , the Security and Freedom Ensured Act of 2005 (introduced byRepresentative Otter). (1) Although the Senate bill is more detailed, they address many of the same issues, most of which relateto the USA PATRIOT Act -- roving Foreign Intelligence Surveillance Act (FISA) wiretaps, delayednotification of "sneak and peek" search warrants, library and similar exemptions from FISA tangibleitem orders and communications related to national security letters, the definition of "domesticterrorism," and expansion of the sunset provisions of the USA PATRIOT Act. (2)

Section 1. Short Title.

Section 1 of the bills contains their short titles, the "Security and Freedom Ensured Act of2005 (SAFE) Act" in the case of H.R. 1526 ; and "Security and Freedom EnhancementAct of 2005" or "SAFE Act" in the case of S. 737 .

Section 2. Limitation on Roving Wiretaps Under Foreign Intelligence Surveillance Act of 1978.

Proposed Amendment of 50 U.S.C. 1805(c). TheForeign Intelligence Surveillance Act (FISA) permits federal judges assigned to serve on the ForeignIntelligence Surveillance Court to issue orders authorizing, for foreign intelligence gatheringpurposes, electronic surveillance (wiretapping), 50 U.S.C. 1801-1811; physical searches, 50 U.S.C.1821-1829; the use of trap and trace devices and pen registers (surreptitious caller id devices), 50U.S.C. 1841-1846; and access to tangible items (particularly business records), 50 U.S.C.1861-1862.

Subsection 1805(c) describes the specifications and directions for FISA electronicsurveillance orders. Before 9/11, FISA electronic surveillance orders specified (1) the identity, ifknown , or the description of the target of the surveillance, 50 U.S.C. 1805(c)(1)(A)(2000ed.)(emphasis added), (2) the nature and location of the facilities or places at which the surveillancewas directed, 50 U.S.C. 1805(c)(1)(B)(2000 ed.) and (3) if requested, the identity of communicationsproviders, landlords and other person whose assistance would facilitate execution of the order, 50U.S.C. 1805(c)(2)(B)(2000 ed.).

Section 206 of the USA PATRIOT Act temporarily altered this third feature to permit ageneral command for third party assistance without identifying a specific person, if the target of theorder regularly changed telephones or meeting places or took other evasive steps in order to thwartsurveillance efforts, 50 U.S.C. 1805(c)(2)(B). The intelligence authorization act for 2002 altered thesecond feature to require identification of the nature and location of targeted facilities and placesonly if they were known, 50 U.S.C. 1805(c)(1)(B). Thus, at least temporarily, FISA surveillanceorders may be issued that simply describe the target but do not otherwise identify the target, thefacilities or places to be targeted, or those communications providers or others whose assistance willbe commanded to facilitate execution of the order.

Both the House and Senate bills amend subsection 1805(c) to require that FISA surveillanceorders identify either the target or the facilities or places targeted; orders merely describing the targetbecause the target's identity is unknown must identify the facilities or places targeted and orders thatdo not identify the facilities or places because they are unknown must identify the target. If thefacilities or places cannot be identified in the order, both bills limit execution of a FISA surveillanceorder to times when the target is present at the facility or place under surveillance.

Section 3. Limitations on Delayed Notice Search Warrants.

A. In General. The Fourth Amendment to theUnited States Constitution prohibits unreasonable searches and seizures, U.S.Const. Amend. IV. The Amendment does not apply when there is no reasonable expectation of privacy with respect tothe item seized, such as information or other property in the possession of a third party for example, United States v. Miller , 425 U.S. 435 (1976)(a customer has no expectation of privacy with respectto the records of his financial transactions subpoenaed from the customer's bank). Yet where areasonable expectation of privacy exists and subject to certain exigent circumstances, the FourthAmendment requires officers executing a search warrant to knock and announce their purpose beforeentering to execute the warrant, Richards v. Wisconsin , 520 U.S. 385 (1997); Wilson v. Arkansas ,514 U.S. 927 (1995). Prior to the USA PATRIOT Act, the Federal Rules of Criminal Procedure which implement the Amendment, instructed officers to leave a notice of the search and an inventoryof any items seized at the location where the search occurred, F.R.Crim.P. 41(d)(2000 ed.). Thelower federal appellate courts were divided over whether failure to provide notification should betreated as a violation of the Rule or as a constitutional violation; and they likewise could not agreeon how long notification might be postponed when exigent circumstances justified delayednotification, United States v. Freitas , 800 F.2d 1451 (9th Cir. 1986); United States v. Pangburn , 983F.2d 449 (2d Cir. 1993); United States v. Simmons , 206 F.3d 392 (4th Cir. 2000).

Federal law permits delayed notification to customers of government access to theircommunications stored with service providers, 18 U.S.C. 2705, 2703(b) -- a situation under whichthere may well be no judicially recognized reasonable expectation of privacy. The law limits delaysto instances where contemporaneous disclosure would have adverse consequences. The list ofadverse consequences includes factors traditionally recognized as exigent circumstances for FourthAmendment purposes (risk of injury or flight, of the destruction of evidence, or of the intimidationof a potential witness) and two factors which probably would not be thought to constitute exigentcircumstances (seriously jeopardize an investigation or unduly delay a trial), 18 U.S.C. 2705(a)(2),(b).

Section 213 of the USA PATRIOT Act amends 18 U.S.C. 3103a to permit delayednotification of the execution of a search warrant or court order for a reasonable time in presence ofany of the adverse conditions listed in 18 U.S.C. 2705, 18 U.S.C. 3103a(b).

The two bills amend subsection 3103a(b) first to limit the grounds justifying delay to thosethat can be considered exigent circumstances (injury, flight, destruction of evidence, witnessintimidation risks) and second to confine the period of delay to no more than 7 days (with thepossibility of 21-day extensions).

B. Reports. The bills direct the Attorney Generalto issue a public report every six months documenting the number of notify postponements andextensions requested and granted or denied, proposed 18 U.S.C. 3103a(c). The Senate bill alsoinsists that the report identify the nature of the crimes that have given rise to subsection 3103a(b)requests, proposed 18 U.S.C. 3103a(c)(2)(C).

Section 4. Privacy Protections for Library, Bookseller, and Other Personal Records Under Foreign Intelligence Surveillance Act of 1978.

A. In General. Before the USA PATRIOT Act,FISA authorized judges and magistrates of the FISA court to issue orders affording the FederalBureau of Investigation (FBI) access to certain business records during the course of gatheringforeign intelligence information or investigating international terrorism, 50 U.S.C. 1861-1863 (2000ed.). Applications were to include "specific and articulable facts" for a belief that the subject of thebusiness records was a foreign power or the agent of a foreign power, 50 U.S.C. 1862(b)(2)(B)(2000ed.). The orders could be addressed to any transportation common carrier, public accommodationprovider, storage facility or vehicle rental business, 50 U.S.C. 1862(d)(1)(2000 ed.), and recipientscould not disclose them except to the extent necessary to provide access to the records, 50 U.S.C.1862(d)(2)(2000 ed.).

Section 215 of the USA PATRIOT Act temporarily rewrote this portion of FISA, 50 U.S.C.1861-1862. In the form scheduled to sunset on December 31, 2005, FISA court orders are availablefor FBI access to "any tangible things (including books, records, papers, documents, and otheritems)" without regard to whether they pertain to a foreign power or any of its agents as long asaccess is sought to obtain foreign intelligence information (not concerning a United States person)or to protect against international terrorism or clandestine intelligence activities, 50 U.S.C.1861(a)(1). Section 215 kept the nondisclosure feature and granted recipients protection from civilliability for compliance with a FISA order, 50 U.S.C. 1861(d),(e).

Both bills restrict the temporary FISA tangible things access orders to instances where thereare specific and articulable reasons to believe that the records pertain to a foreign power or one ormore of its agents, proposed 50 U.S.C. 1861(b),(c). The Senate bill alone provides that the ordermay be no more sweeping than a grand jury subpoena duces tecum issued in the context of anespionage or international terrorism investigation ( i.e. , it must yield to federally recognizedprivileges and may not be unreasonable or oppressive), proposed 50 U.S.C. 1861(c)(3). The Senatebill also calls for the order to include notice of the recipient rights that the bill provides, proposed50 U.S.C. 1861(c)(4).

B. Oversight. Both bills add the House andSenate Judiciary Committees to the Congressional authorities that the Attorney General must keepapprised of the extent of the FBI's use of the FISA access order authority, 50 U.S.C. 1862.

C. Amendments Unique to S. 737. TheSenate bill adds: (1) exceptions and 180 day time limits to the nondisclosure feature (with thepossibility of 180 day extensions), (2) a procedure to allow a recipient to quash or modify an order,and (3) use provisions comparable to those that apply to the use of information generated by FISAsurveillance and physical search orders, proposed 50 U.S.C. 1861(d), (f), (g). H.R. 1526 has no comparable provisions.

Section 5. (H.R. 1526: Privacy Protections for Computer Users at Libraries Under National Security Authority/ S. 737: Procedural Protections for National Security Letters).

In General. Four statutes vest federal intelligenceofficials with the power to demand production of certain information directly rather than invoke thepower of a FISA court judge to secure access. These national security letter statutes are:

18 U.S.C. 2709

(FBI request to wire or electronic communicationsservice providers for customer name, address, length of service, and local and long distance tollbilling records)

12 U.S.C. 3414

(FBI request to financial institutions for records relatingto customer transactions)

15 U.S.C. 1681u

(FBI request to consumer reporting agencies forconsumer name, address, former address, places of employment, former places of employment, andnames and addresses of financial institutions with whom a customer has anaccount)

15 U.S.C. 1681v

(government agency request to consumer reportingagencies for consumer and all other information in the agency'sfiles)

Although they vary somewhat, these statutes generally have no explicit enforcementmechanism nor any means for a recipient to have a request modified or set aside, bar disclosure byrecipients of the requests, and have no uniform provisions concerning use of the informationprovided in response to the request.

Section 505 of the USA PATRIOT Act amended three of the four provisions (18 U.S.C.2709, 12 U.S.C. 3414, 15 U.S.C. 1681u) and section 358 created the fourth (18 U.S.C. 1681v). Eachof the amendments (1) made it clear that the request did not have to come from FBI headquarters butcould be issued by any of the agents in charge of the various FBI field offices; (2) substituted arelevancy issuance standard for the earlier reason to believe standard; (3) dropped the requirementthat the records sought pertain to a foreign power or its agents; and (4) asserted that access could notbe sought in connection with an investigation based solely on an American's exercise of his FirstAmendment rights.

In a case now on appeal, one federal district court found that the manner of exercising thenational security letter authority under 18 U.S.C. 2709 violated both the Fourth and the FirstAmendments, the Fourth because of the want of judicial supervision or review and the First becauseof the facially all encompassing, permanent form of the gag order, Doe v. Ashcroft , 334 F.Supp.2d471 (S.D.N.Y. 2004).

H.R. 1526. The bills treat the nationalsecurity letter statutes differently. H.R. 1526 simply exempts libraries from thecoverage of 18 U.S.C. 2709 ("a library shall not be treated as a wire or electronic communicationservice provider for purposes of this section"), proposed 18 U.S.C. 2709(a)(2). Later in the bill, itadds section 505 of the USA PATRIOT Act with its amendments to the national security letterstatutes (18 U.S.C. 2709, 12 U.S.C. 3414, and 15 U.S.C. 1681u) to the list of USA PATRIOT Actprovisions that expire on December 31, 2005.

S. 737. The Senate makes no suchaddition to the list of terminating sections nor does it exempt libraries per se from any of nationalsecurity letter statutes. Instead it rewrites each of the statutes in much the same way it rewrites theFISA access order provisions. Within each of the national security letter statutes, it:

- reestablishes the demand that the information sought be based on specific and articulablefacts that suggest that the information sought pertains to a foreign power or one or more ofits agents;

- sets a 90 day time limit for the gag orders based on exigent circumstances (with thepossibility of 180 day extensions available from the court on the same basis);

- permits recipients to challenge both the request and gag orders in court;

- holds the letters to same standards that apply to grand jury subpoenas duces tecum issuedin espionage or international terrorism cases ( i.e. , they must yield to federally recognizedprivileges and may not be unreasonable or oppressive);

- explicitly permits disclosure to those necessary to comply with the request and to therecipient's attorney; and

- establishes a procedure for use and suppression of evidence generated by the letters.

Section 6. Modification of Definition of Domestic Terrorism (H.R. 1526; Section 7 in S. 737).

Federal law employs two terrorism-related definitions fairly extensively. The first defines"federal crimes of terrorism" by listing a series of specific federal offenses likely to be committedfor terrorist purposes, 18 U.S.C. 2332b(g)(5)(text is appended). The second defines "domesticterrorism" generically rather than by reference to any specific federal crime, 18 U.S.C. 2331(5):

As used in this chapter . . . (5) the term"domestic terrorism" means activities that -- (A) involve acts dangerous to human life that are aviolation of the criminal laws of the United States or of any State; (B) appear to be intended -- (i)to intimidate or coerce a civilian population; (ii) to influence the policy of a government byintimidation or coercion; or (iii) to affect the conduct of a government by mass destruction,assassination, or kidnapping; and (C) occur primarily within the territorial jurisdiction of the UnitedStates.

Neither domestic terrorism or a federal crime of terrorism is a separate crime. They are usedfor purposes of cross reference. Thus for example, a federal crime of terrorism as defined in 18U.S.C. 2332b(g)(5)(B) that involves the risk of serious injury to another person is not subject to theusual statute of limitations and may be prosecuted at any time, 18 U.S.C. 3286(b). Similarly,property derived from and used to facilitate international or domestic terrorism as defined by 18U.S.C. 2331 is subject to confiscations, 18 U.S.C. 982(a)(1)(G).

Both bills amend 18 U.S.C. 2331(5) so as to merge the two definitions, "As used in thischapter . . . (5) the term 'domestic terrorism' means activities that -- (A) involve acts dangerous tohuman life that constitute a Federal crime of terrorism (as that term is defined in section 2332b(g)(5)of this title); and (B) occur primarily within the territorial jurisdiction of the United States."

H.R. 1526 contains an additional provision that emphasizes that nothing insection 2331 should be construed to preclude enforcement of state terrorism laws; S. 737 has no comparable provision.

Section 6. (S. 737 only) Privacy Protections for Pen Registers and Trap and Trace Devices.

A. In General. Trap and trace devices and penregisters are essentially surreptitious "caller id" devices that track the source and destination ofincoming and outgoing telephone calls to and from a particular telephone. The Supreme Court hasheld that their use does not offend any Fourth Amendment protected expectation of privacy, Smithv. Maryland , 442 U.S. 735 (1979). Federal law contains procedures under which authorities maysecure judicial approval for the installation and use of trap and trace devices and pen registers in botha law enforcement and an intelligence gathering (FISA) context, 18 U.S.C. 3121-3127; 50 U.S.C.1841-1846.

Section 216 and 214 of the USA PATRIOT Act amended the law enforcement and FISAprocedures to apply to e-mail and other forms of Internet and electronic communications, 18 U.S.C.3121(c), 3123(a), (b), 3127; 50 U.S.C. 1842, 1843. The law enforcement amendment requires areport to the issuing court on the specifics on the use of the devices in connection with an Internetcommunication, 18 U.S.C. 3123(a)(3). The FISA amendment precludes use of the authority inconnection with an investigation predicated solely on the exercise of an American target's FirstAmendment rights, 50 U.S.C. 1842, 1843. The FISA amendment expires on December 31, 2005;the law enforcement amendment does not, Â§224, P.L. 107-56 , 115 Stat. 295 (2001).

B. H.R. 1526. Section 7 of the Housebill adds section 216, the law enforcement amendment, to the list of USA PATRIOT Act sectionsthat expire on December 31, 2005.

C. S. 737. The Senate bill amends boththe FISA and the law enforcement procedure to require applicants to include a statement of thespecific and articulable facts that give rise to their belief that installation and use of the devices willproduce evidence relevant to a criminal investigation, proposed 50 U.S.C. 1842(c); proposed 18U.S.C. 3122(b)(2). It expands the annual law enforcement reporting requirement to include morespecific information concerning the use of the devices and directs that report be made publicly,proposed 18 U.S.C. 3126. And it establishes a new notice provision in the law enforcementprocedure for the benefit of those whose interests are implicated by use of the device, proposed 18U.S.C. 3123(e).

Section 7. (H.R. 1526 only) Extension of Patriot Sunset Provision.

A. In General. Section 224 of the USAPATRIOT Act creates an expiration date (December 31, 2005) for the sections found in Title II ofthe Act, but exempts from termination several including sections 213 (delayed notification of theexecution of search warrant (sneak and peek warrants)), 216 (use of trap and trace devices and penregisters for law enforcement purpose), 219 (nation-wide service of terrorism search warrants). H.R. 1526 removes the exemption for these three sections so that they too expire onDecember 31, 2005. It also marks section 505 (national security letter amendments) for expirationat that time.

Although it has no similar provision, S. 737 addresses many of the sameconcerns, as noted earlier, in section 3 (relating to section 213 and limiting the justifications ofdelayed notification to exigent circumstances and establishing 7 day and 21 day caps for the initialperiod of delay and any subsequent extensions); in section 6 (relating to section 216 and providingfor participant notice in law enforcement trap and trace device and pen register cases; public reportson use of the authority; and presentation of the facts giving specific and articulable justification forthe orders); and in section 5 (relating to section 505 and providing for general adjustments in thenational security letter statutes).

B. Boundless Terrorist Search Warrants. In mostinstances federal judges may only issue search warrants to be executed in their own judicial districts,F.R.Crim.P. 41, but in cases of international or domestic terrorism (3) section 219 of the USAPATRIOT Act allows judges in any district where related activities have occurred to issue searchwarrants that may be executed "within or outside the district," F.R.Crim.P. 41(a)(3). Under H.R. 1526 , section 219 sunsets on December 31, 2005.

Section 8. (S. 737 only) Public Reporting of the Foreign Intelligence Surveillance Act of 1978.

The intelligence reform legislation passed at the end of the 108th Congress, amended FISAdirecting the Attorney General to report -- in a manner consistent with the protection of nationalsecurity -- to the Congressional Judiciary and Intelligence Committees semi-annually on the extentof FISA use, interpretation of the Act by the FISA court, and copies of the FISA court opinions, 50U.S.C. 1871.

S. 737 amends section 1871 to require that the reports be made public, confinesthe instruction that the report be made in a manner consistent with the protection of national securityto information relating to FISA court opinions, but permits the Attorney General to redact for theprotection of national security portions of the publicly released opinions. H.R. 1526 has no comparable provisions.

Appendix

18 U.S.C. 2332b

* * *

(g) Definitions. -- As used in this section . . .

(5) the term "Federal crime of terrorism" means an offense that -- (A) is calculated toinfluence or affect the conduct of government by intimidation or coercion, or to retaliate againstgovernment conduct; and

(B) is a violation of -- (i) section 32 (relating to destruction of aircraft or aircraft facilities),37 (relating to violence at international airports), 81 (relating to arson within special maritime andterritorial jurisdiction), 175 or 175b (relating to biological weapons), 175c (relating to variola virus),229 (relating to chemical weapons), subsection (a), (b), (c), or (d) of section 351 (relating tocongressional, cabinet, and Supreme Court assassination and kidnaping), 831 (relating to nuclearmaterials), 842(m) or (n) (relating to plastic explosives), 844(f)(2) or (3) (relating to arson andbombing of Government property risking or causing death), 844(i) (relating to arson and bombingof property used in interstate commerce), 930(c) (relating to killing or attempted killing during anattack on a Federal facility with a dangerous weapon), 956(a)(1) (relating to conspiracy to murder,kidnap, or maim persons abroad), 1030(a)(1) (relating to protection of computers) , 1030(a)(5)(A)(i)resulting in damage as defined in 1030(a)(5)(B)(ii) through (v) (relating to protection of computers),1114 (relating to killing or attempted killing of officers and employees of the United States), 1116(relating to murder or manslaughter of foreign officials, official guests, or internationally protectedpersons), 1203 (relating to hostage taking), 1361 (relating to government property or contracts), 1362(relating to destruction of communication lines, stations, or systems), 1363 (relating to injury tobuildings or property within special maritime and territorial jurisdiction of the United States),1366(a)(relating to destruction of an energy facility), 1751(a), (b), (c), or (d) (relating to Presidentialand Presidential staff assassination and kidnaping), 1992 (relating to wrecking trains), 1993 (relatingto terrorist attacks and other acts of violence against mass transportation systems), 2155 (relating todestruction of national defense materials, premises, or utilities), 2156 (relating to national defensematerial, premises, or utilities), 2280 (relating to violence against maritime navigation), 2281(relating to violence against maritime fixed platforms), 2332 (relating to certain homicides and otherviolence against United States nationals occurring outside of the United States), 2332a (relating touse of weapons of mass destruction), 2332b (relating to acts of terrorism transcending nationalboundaries), 2332f (relating to bombing of public places and facilities), 2332g (relating to missilesystems designed to destroy aircraft), 2332h (relating to radiological dispersal devices, 2339 (relatingto harboring terrorists), 2339A (relating to providing material support to terrorists), 2339B (relatingto providing material support to terrorist organizations), 2339C (relating to financing of terrorism,or 2340A (relating to torture) of this title;

(ii) sections 92 (relating to prohibitions governing atomic weapons) or 236 (relating tosabotage of nuclear facilities or fuel) of the Atomic Energy Act of 1954 (42 U.S.C. 2122 or 2284);or

(iii) section 46502 (relating to aircraft piracy), the second sentence of section 46504 (relatingto assault on a flight crew with a dangerous weapon), section 46505(b)(3) or (c) (relating toexplosive or incendiary devices, or endangerment of human life by means of weapons, on aircraft),section 46506 if homicide or attempted homicide is involved (relating to application of certaincriminal laws to acts on aircraft), or section 60123 ( b) (relating to destruction of interstate gas orhazardous liquid pipeline facility) of title 49.