"Patriot" Section 220

spy1 · Posted: Thu Mar 18, 2004 12:26 pm Post subject: "Patriot" Section 220

This week we look at Section 220, which allows the FBI to get
search warrants for electronic evidence that apply nationwide.
This threatens your Constitutional rights by enabling the FBI
to "shop" for judges most sympathetic to law enforcement, by
reducing local judicial oversight and by lowering the chances
that your ISP or phone company will challenge the warrant to
protect your privacy.

~ How Section 220 Changed the Law

Before PATRIOT, the FBI could execute a search warrant for
electronic evidence only within the geographic jurisdiction
of the court that issued the warrant - for example, the FBI
couldn't get a New York court to issue a warrant for email
messages stored by your ISP in California.

After PATRIOT, courts can issue warrants for electronic
evidence - your email messages, your voice mail messages and
the electronic records detailing your web-surfing - anywhere
in the country. Notably, Section 220 isn't reserved for
terrorism-related investigations, despite the fact that
PATRIOT was sold to the American public as a necessary
anti-terrorism measure. Instead, it applies in any kind of
criminal investigation whatsoever.

~ Why Section 220 Should Sunset

Section 220 significantly increases the chances that search
warrants that fail to meet Constitutional standards will be
used to search and seize your electronic communications:

* Section 220 allows the FBI to pick and choose which courts
it can ask for a search warrant. This means it 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 doesn't
satisfy the strict requirements of the Fourth Amendment to
the Constitution.

* By allowing courts to issue warrants to be served on
communications providers in far-away states, Section 220
reduces the likelihood that your ISP or phone company will
try to protect your privacy by challenging the warrant in
court, even if the warrant is clearly unconstitutional.
A small San Francisco ISP served with such a warrant is
unlikely to have the resources to appear before the New
York court that issued it. Yet because you won't
be notified if a search warrant is used to get your
electronic communications, your ISP is the only entity in
a position to fight for your rights.

The FBI argues that having to secure search warrants from
more than one court during an investigation is a waste of
time. But local judicial oversight is a key check against
unreasonable searches. Further, the FBI already has the
ability to conduct emergency searches without a warrant
when it doesn't have time to go to a local judge.

Even worse, Section 220 isn't necessary to help combat
terrorism - PATRIOT section 219 already allows nationwide
search warrants in terrorism-related investigations. The
only practical result of Section 220 is less paperwork
for the FBI - at the expense of your Constitutional rights.

~ Conclusion

Section 220 threatens your Fourth Amendment right against
unreasonable searches and seizures. EFF strongly opposes
its renewal, and we urge you to oppose it, too. We also
support the Security and Freedom Ensured Act (SAFE Act,
S 1709/HR 3352) and encourage you to visit EFF's Action
Center today to let your representatives know you support
the bill:
http://action.eff.org/action/index.asp?step=2&item=2866

Pete


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