5/20. The Senate Judiciary
Committee held a hearing titled "FBI Oversight: Terrorism and
Other Topics". The only witness was
Director of the Federal Bureau of Investigation.
Much of the hearing focused on non-technology related topics, such as
treatment of prisoners in Iraq and elsewhere, FBI and CIA interrogation
practices, and translations and the hiring of
linguists by the FBI.
However, the hearing also addressed extension of various provisions of the USA
PATRIOT Act, and the use of information technology at the FBI.
Mueller (at left) submitted
much of which he read at the hearing.
Sen. Leahy questioned Director Mueller in a cold and confrontational manner.
Although, he focused mainly on non-technology related issues, such as FBI
investigations into custodial conditions in Iraq. Republicans were generally
more supportive of Director Mueller.
Sen. Leahy made an opening statement, and submitted a long
prepared statement for the hearing record in which he covered several tech
issues, including application of CALEA like requirements to broadband internet access.
Extension of the Sunsetting Provisions of the PATRIOT Act. The USA PATRIOT
Act is an acronym for "Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001". It was passed quickly after the terrorist attacks of September 11, 2001
by the 107th Congress as
It became Public Law 107-56 on October 26, 2001.
Title II of the PATRIOT Act addresses electronic surveillance and related
issues. It also provides that numerous of its provisions "shall cease to have
effect on December 31, 2005". These sunsetting provisions have been the subject
of debate, and proposed legislation. Some were addressed at the hearing.
For a discussion of the provisions that are scheduled to sunset, and how
various pending bills would treat these provisions, see
titled "Bush Proposes to Extend and Expand PATRIOT Act" in TLJ Daily E-Mail
Alert No. 880, April 20, 2004; story titled "Bush Opposes Congressional Proposals
to Roll Back Parts of PATRIOT Act" in TLJ Daily E-Mail Alert No. 880, April 20,
2004; and story titled "Sen. Leahy Introduces Bill to Expand List of
Surveillance Provisions of PATRIOT Act to Be Sunsetted" in
TLJ Daily E-Mail
Alert No. 757, October 14, 2003.
Sen. Orrin Hatch (R-UT), the Chairman
of the Committee, praised Mueller and the FBI in his
statement. He also said the "before September 2001, we had communications
challenges between the law
enforcement community and the intelligence community. Sections 203 and 218 of
the USA PATRIOT Act -- which are due to expire on December 31, 2005 -- have been
instrumental in breaking down the artificial wall of non-communication between
the intelligence community and the law enforcement community."
In contrast, Sen. Leahy wrote in his prepared statement that "this
Administration just wants a blank check on its extension and recently came
before this Committee to ask that the law be expanded further with vague
Mueller's Defense of the PATRIOT Act. Mueller wrote in his
prepared testimony that "the PATRIOT Act has proved
extraordinarily beneficial in the war on terrorism and has changed the way the
FBI does business. Many of our counterterrorism successes, in fact, are the
Mueller praised the information sharing provisions of the PATRIOT Act. He
said that they "tore down the wall that stood between the intelligence
investigators responding to terrorist threats and the criminal investigators
responding to those same threats."
Mueller also stated that "the PATRIOT Act gave federal judges the authority
to issue search warrants that are valid outside the issuing judge's district in
terrorism investigations" and that "the PATRIOT Act permits similar search
warrants for electronic evidence such as email. In the past, for example, if an
Agent in one district needed to obtain a search warrant for a subject's email
account, but the Internet service provider (ISP) was located in another
district, he or she would have to contact an AUSA and Agent in the second
district, brief them on the details of the investigation, and ask them to appear
before a judge to obtain a search warrant – simply because the ISP was
physically based in another district. Thanks to the PATRIOT Act, this
frustrating and time-consuming process can be averted without reducing judicial
oversight. Today, a judge anywhere in the U.S. can issue a search warrant for a
subject's email, no matter where the ISP is based."
§ 220 of the PATRIOT Act pertains to "Nationwide service of search warrants
for electronic evidence". The PATRIOT Act, and some pending bills, would sunset
He also stated that "the PATRIOT Act updated the law to match current
technology, so that we no longer have to fight a 21st-century battle with
antiquated weapons. Terrorists exploit modern technology such as the Internet
and cell phones to conduct and conceal their activities. The PATRIOT Act leveled
the playing field, allowing investigators to adapt to modern techniques. For
example, the PATRIOT Act clarified our ability to use court-ordered pen
registers and trap-and-trace devices to track Internet communications.
§ 214 of the PATRIOT Act pertains to "Pen register and trap and trace
authority under FISA". The PATRIOT Act, and some pending bills, would
sunset this provision.
He continued that "The Act also enabled us to seek court-approved roving
wiretaps, which allow investigators to conduct electronic surveillance on a
particular suspect, not a particular telephone -- this allows them to
continuously monitor subjects without having to return to the court repeatedly
for additional authorizations. This technique has long been used to investigate
crimes such as drug trafficking and racketeering. In a world in which it is
standard operating procedure for terrorists to rapidly change locations and
switch cell phones to evade surveillance, terrorism investigators must have
access to the same tools."
§ 206 of the PATRIOT Act pertains to "Roving surveillance authority under the
FISA". The PATRIOT Act, and some pending bills, would sunset this provision.
Mueller concluded that "I strongly believe it is vital to our national
security to keep each of these provisions intact. Without them, the FBI could be
forced back into pre-September 11 practices, attempting to fight the war on
terrorism with one hand tied behind our backs."
Sen. Feingold. Sen.
Russ Feingold (D-WI) focused on the USA PATRIOT Act.
He was the only Senator to vote against the bill in 2001. See,
Roll Call No. 107-313. He is now one of the
leading critics of some of its provisions.
Sen. Feingold (at right) is is
the sponsor of
S 1701, the
"Reasonable Notice and Search Act", a bill to limit the use of delayed notice
warrants, also know as sneak and peak warrants. See, story titled "Sen. Feingold
Introduces Bill to Limit Delayed Notice Warrants" in
TLJ Daily E-Mail
Alert No. 753, October 6, 2003.
the "Security and Freedom Ensured Act of 2003" (SAFE Act), has become the main
vehicle for opposition to the Bush administration's position on extending and
expanding the PATRIOT Act. Sen. Feingold is an original cosponsor of S 1709.
See, story titled "Senators Craig and Durbin Introduce Bill to Modify PATRIOT
Act" in TLJ Daily
E-Mail Alert No. 753, October 6, 2003.
Bait and Switch. Sen. Feingold stated to Mueller that
"it does pain me to hear you using the same approach that
almost everyone else in the administration uses to defend USA PATRIOT Act. I've
heard the President do it. I've heard the Attorney General do it. You say the
bill has to be reenacted in exactly the same form. Then you cite a bunch of
provisions, Mr. Mueller, that nobody objects to. It's a bait and switch.
Nobody's against taking down the wall. Nobody wants to put the wall back up."
It may be pertinent to Sen. Feingold's statement regarding "bait and switch"
advocacy to review the statements President Bush, Attorney General Ashcroft and
Director Mueller have made in defense of the PATRIOT Act. The President's most
detailed discussions of the PATRIOT Act came in his April 19
in Hershey, Pennsylvania, and his April 20
speech in Buffalo, New York. In both of these speeches he spoke about
information sharing, or, as Sen. Feingold stated, "taking down the wall".
However, the President also spoke on April 19 in detail about the extension
of provisions regarding roving wiretaps, delayed notice of search warrants
(sneak and peak), and access to business records under
the FISA. On April 20 he spoke about roving wiretaps and sneak and peak.
AG Ashcroft's most specific statement on the subject came in his January 28,
[4 page PDF scan] to Senators. He discussed, as did President Bush, roving
wiretaps, sneak and peak, and access to business records under the FISA.
In addition, Ashcroft addressed treatment of libraries as electronic
communications service providers, and extending the provisions regarding pen
register and trap and trace devices (PR&TTDs) to electronic communications, such
The SAFE Act, as well as Sen. Leahy's bill, Sen. Murkowski's bill, and Sen.
Feingold's bill, recite the areas were there is difference between the Bush
administration and certain Senators. The topics addressed by these bills include
roving wiretaps, sneak and peak, access to business records under the FISA, treatment
of libraries as electronic communications service providers, and PR&TTDs.
The President, the Attorney General, and Director Mueller have dwelt upon information
sharing and bringing down the wall of separation between government entities, as Sen.
Feingold stated. However, as Bush's speeches, Ashcroft's letter, and Mueller
testimony (summarized above) illustrate, they have also addressed the areas where there are
For more on President Bush's speeches on the PATRIOT Act, see, April 17
address and story titled "Bush Addresses PATRIOT Act" in TLJ Daily E-Mail
Alert No. 879, April 19, 2004; April 19
in Hershey, Pennsylvania, and stories titled "Bush Proposes to Extend and Expand
PATRIOT Act" and "Bush Opposes Congressional Proposals to Roll Back Parts of
PATRIOT Act" in TLJ Daily E-Mail Alert No. 880, April 20, 2004; April 20
speech in Buffalo, New York, and story titled "Bush Continues to Speak About
PATRIOT Act" in TLJ Daily E-Mail Alert No. 881, April 21, 2004; and April 21
in Washington DC and story titled "Bush Addresses Broadband Policy, Free Trade
and the PATRIOT Act" in TLJ Daily E-Mail Alert No. 882, April 22, 2004.
Roving Wiretaps. Sen. Feingold went on to state to Director Mueller
that, "Then you cite the idea on the roving wire taps. Everybody in this Congress
wants us to be able to get at the other telephone."
"It's simply not anything that anyone has proposed that I know of." He added
that "Nobody opposed the idea of nationwide search warrants, the sort of thing
you mention. And here's the problem: The problem is that you suggest to the
American people that somehow these provisions are in dispute".
Mueller responded that "you start off by saying that the roving part of the
statute is not an issue. But part of the SAFE Act would modify that part".
Sen. Feingold responded, "I didn't say that, Mr. Director. I said that the
issue that you brought up, of being able to get at multiple telephones, is not
The SAFE Act, S 1709, at Section 2, would amend Section 105(c) of the FISA,
which is codified at
50 U.S.C. § 1805. This is the section that provides for the roving wiretaps
that are the subject of this debate. Sen. Feingold is a cosponsor.
Currently, orders authorizing these roving wiretaps are available when the
identity of the target of the surveillance is not known. Also, currently, these
orders are available when "the nature and location of each of the facilities or
places at which the electronic surveillance will be directed" is not known.
The SAFE Act would limit these provisions. It would require that an order
authorizing electronic surveillance under this section shall direct that "in
cases where the facility or place at which the surveillance will be directed is
not known at the time the order is issued, that the surveillance be conducted
only when the presence of the target at a particular facility or place is
ascertained by the person conducting the surveillance".
The phrase "get at the other telephone" is not found in the current statute,
or any of the pending bills. It is an undefined phrase. Nevertheless, there is
an argument that the SAFE Act would limit the FBI's ability to "get at the other
telephone", and hence, that this issue is in dispute.
Sen. Specter. Sen. Arlen
Specter (R-PA) raised several of the sections of Title II of the PATRIOT Act. He
argued that there should be higher standards for delayed notification of search warrants,
and access to business records under the FISA. In particularly, he expressed concern
about law enforcement access to library records.
Mueller defended § 213 of the PATRIOT Act, which allows for delayed
notification of search warrants. This section provides that the court may order
that notice be delayed if "the court finds reasonable cause to believe that
providing immediate notification of the execution of the warrant may have an
Mueller stated that the standard for issuing such an order is less that the
standard for issuing a search warrant (probable cause), because a delay of
notification is not a search.
Sen. Specter also discussed § 215 of the PATRIOT Act pertaining to business
records. It amended the Foreign Intelligence Surveillance Act (FISA) at §§ 501
The FISA only applies to foreign powers, and agents of foreign powers,
including international terrorists. Section 501 enables the FBI to obtain from a
judge or magistrate an order requiring the production business records. While
the statute does not expressly include library records, it is not disputed that
library records could be obtained.
Currently, Section 501 requires that the application to the judge or
magistrate "shall specify that the records concerned are sought for an
authorized investigation conducted in accordance with subsection (a)(2) to
obtain foreign intelligence information not concerning a United States person or
to protect against international terrorism or clandestine intelligence
Sen. Specter asked, for example, why should the government not be required
also to explain why the records are being sought.
CALEA. Sen. Leahy also addressed the Communications Assistance for Law
Enforcement Act (CALEA). He suggested that the subject of the FBI's pending
petition to the
Federal Communications Commission (FCC) should be
addressed by the Congress, not the FCC. (This is the FCC's RM 10865.)
He wrote in his prepared testimony that "we need to make sure that the FBI
has the capability of dealing with new technologies for communicating over the
Internet that may not have been covered by the CALEA. Congress passed CALEA in
1994 to address the law enforcement concerns that emerging technologies such as
call forwarding and mobile phones had on wiretap efforts. CALEA required
telecommunication services to rewire their networks to support easy
Sen. Leahy continued that "The FBI recently asked the FCC to extend CALEA to
broadband Internet providers, but this is an issue that needs to be addressed by
this Committee. I hope that Chairman Hatch agrees, and that we can work together
on this. We must now grapple with the new technologies that have transformed the
world since CALEA was signed into law a decade ago."
FBI's Information Technology. Sen. Leahy wrote in his prepared
statement that "the FBI has not solved even its most basic problem: Its
information technology systems are hopelessly out of date. In this regard, the
FBI is not much better off today than it was before September 11, 2001, when it
was unable to do a computer search of its own investigative files to make
critical links and connections. By all accounts, the Trilogy solution has been a
He added, in the abbreviated statement that he made at the outset of the
hearing that "I suspect most small county sheriff's departments have better
Mueller stated in his prepared testimony that "Over the past two and a half
years, the FBI has made tremendous efforts to overhaul our information
technology, and we have made significant process."
He added that "during the past year we have encountered some setbacks
regarding the deployment of Trilogy's Full Site Capability (FSC) and the Virtual
Case File. Our goal is to deliver Virtual Case File capabilities by the end of
Sen. Hatch stated that "It is not an easy task to update both local and wide
area networks and install 30,000 new desktop computers, but you have
accomplished that and I congratulate you. I understand that you have been
consulting with various outside experts seeking their advice on the Trilogy
project and have received much praise for working cooperatively with them and
being receptive to their recommendations."
He added that "I know that you still have a very long way to go on
this project and that you are still working with various experts on the Virtual Case
File system as well as other aspects of Trilogy. I have every confidence that you will
continue to be responsive and will do whatever it takes to get an effective IT
system up and running."