If the USA PATRIOT Act is allowed to expire, we will return to a pre-9/11 mode of information sharing where there are not clear rules governing investigators’ ability to share information with each other, where terrorists and spies can use technology against us, and where it is more difficult to investigate a potential terrorist attack that it is to catch a drug dealer, a mobster, or a white collar criminal.
Confusion will once again be injected into the questions about what and how information may be shared between criminal investigators and intelligence personnel.
Investigators would possibly be several steps behind sophisticated terrorists and spies who frequently change phones to evade surveillance.
In the vast majority of cases, intelligence investigators will no longer be able to trace the calls of terrorists and spies.
It will once again be illegal for a law enforcement officer who learns of an imminent terrorist threat through a wiretap to disclose that threat to our nation's intelligence agencies without first obtaining a court’s approval.
American companies will not be able to ask law enforcement to assist in disrupting and investigating a cyber attack.
An Internet service provider that voluntarily discloses to the police an e-mail threatening an imminent terrorist attack can once again be sued for doing so.
Investigators will no longer be able to use the Foreign Intelligence Surveillance Act’s investigative tools to pursue “lone wolf” terrorists.
More specific consequences include:
Sections 201 and 202—Wiretap predicates: These sections provided authority for wiretaps relating to certain offenses that terrorists are likely to commit (e.g. material support of terrorist organizations, chemical weapons offenses, and using weapons of mass destruction) to the list of predicate offenses in the federal wiretap statute (18 USC § 2516(1)). They also added offenses under the Computer Fraud and Abuse Act (including computer espionage) to the list of predicate offenses in the federal wiretap statute. If the provisions sunset, investigators seeking to prevent these kinds of high consequence offenses will no longer be able to use wiretaps to do so.
Section 203(b) and (d)—Criminal-derived Information Sharing: If this section sunsets, critical foreign intelligence information discovered through wiretaps or other criminal investigative methods cannot be shared from law enforcement investigators to intelligence personnel absent a court order—severely constraining our intelligence agencies’ ability to “connect the dots.”
Section 206—Roving Wiretaps: Without this authority, the Foreign Intelligence Surveillance Act (FISA) court would be unable to authorize investigators to maintain surveillance when a terrorist or spy engages in a staple of intelligence tradecraft: switching phones and telecommunication providers. Sophisticated terrorists and spies could more easily thwart government surveillance.
Section 207—FISA Surveillance: Section 207 provided an extended duration for certain FISA electronic surveillance and physical search orders and renewals. This small but important change has saved tens of thousands of man-hours since its passage. Moreover, institutional or procedural improvements implemented in reliance on this provision will no longer be available. It is likely that a reversion to the old duration could create a significant disruption in foreign intelligence surveillance.
Section 212—Emergency Disclosure of Information: This section protects Internet service providers (ISP’s) that disclose customer records to law enforcement in emergencies involving immediate risk of death or serious physical injury. This provision has been critical in situations involving bomb threats, rescuing both children and an elderly lady who had been kidnapped, and reaching out to individuals who have made suicide threats. This provision has saved lives.
Sections 214 and 215—Pen Registers and Business Records: If these provisions expire, the pre‑existing authorities to request pen registers and orders to disclose business records would be virtually useless in the great majority of terrorism investigations.
Section 218—Breaking Down “The Wall”: Expiration would create immediate uncertainty about the legality of information sharing, coordination, and cooperation between national security and law enforcement personnel. While some activities may continue to be permissible under other provisions of law, the practical impact could be an end to such cooperation while an assessment is made of what is and is not permissible, reversing the progress that has been made in this area since September 11, 2001.
Section 220—Nationwide Search Warrants: If this provision expires, federal judges will no longer be able to issue nationwide search warrants (i.e. allow a judge to issue warrants for searches to be conducted outside his district) to obtain unopened e-mails stored on an ISP’s computer server, greatly hampering certain investigations involving large ISP’s.
Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004—The “Lone Wolf” Provision: Investigators’ ability to use FISA’s investigative tools to pursue individual terrorists intending to commit acts of international terrorism was added after the USA PATRIOT Act but was tied to the Act’s sunset provision, and this authority will expire on December 31, 2005 unless it is reauthorized.