CRS Amendments To The Foreign Intelligence Surveillance Act (FISA) Extended 6-16-11
CRS Amendments To The Foreign Intelligence Surveillance Act (FISA) Extended 6-16-11
Summary
On May 26, 2011, in the face of imminent expiration, three amendments to the Foreign Intelligence Surveillance Act (FISA) were extended until June 1, 2015. The three amendments were first enacted to expand the scope of federal intelligence-gathering authorities following the 9/11 terrorist attacks. Two amendments were enacted as part of the USA PATRIOT Act. Section 206 of the USA PATRIOT Act amended FISA to permit multipoint, or roving, wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified. Section 215 enlarged the scope of materials that could be sought under FISA to include any tangible thing. It also lowered the standard required before a court order may be issued to compel their production. The third amendment was enacted in 2004, as part of the Intelligence Reform and Terrorism Prevention Act (IRTPA). Section 6001(a) of the IRTPA changed the rules regarding the types of individuals who may be targets of FISA-authorized searches. Also known as the lone wolf provision, it permits surveillance of non-U.S. persons engaged in international terrorism without requiring evidence linking those persons to an identifiable foreign power or terrorist organization. Although these provisions are set to sunset, grandfather clauses permit them to remain effective with respect to investigations that began, or potential offenses that took place, before the sunset date.
Contents
Overview.......................................................................................................................................... 1 Background...................................................................................................................................... 2 Distinction Between FISA Court Orders and Warrants in Criminal Investigations .................. 2 Distinction Between FISA Court Orders and National Security Letters ................................... 4 Expiring FISA Amendments............................................................................................................ 5 Lone Wolf Terrorists .............................................................................................................. 5 Historical Context ............................................................................................................... 5 Legislative Responses ......................................................................................................... 6 Roving Wiretaps ........................................................................................................................ 7 Background ......................................................................................................................... 7 Section 206 and Other Persons ........................................................................................ 7 Particularity Requirement of the Fourth Amendment ......................................................... 8 Access to Business Records Under FISA.................................................................................. 9 Background ......................................................................................................................... 9 Expansion of the Scope of Documents Subject to FISA................................................... 10 Changes to the Standard of Review .................................................................................. 11 Nondisclosure and Judicial Review .................................................................................. 11 DOJ OIG Report................................................................................................................ 12 Effect of Sunset Provisions............................................................................................................ 13
Contacts
Author Contact Information........................................................................................................... 14
Overview
The Foreign Intelligence Surveillance Act (FISA) provides a statutory framework by which government agencies may, when gathering foreign intelligence investigation,1 obtain authorization to conduct electronic surveillance2 or physical searches,3 utilize pen registers and trap and trace devices,4 or access specified business records and other tangible things.5 Authorization for such activities is typically obtained via a court order from the Foreign Intelligence Surveillance Court (FISC), a specialized court created to act as a neutral judicial decision maker in the context of FISA. Shortly after the 9/11 terrorist attacks, Congress enacted the USA PATRIOT Act, in part, to provid[e] enhanced investigative tools to assist in the prevention of future terrorist activities and the preliminary acts and crimes which further such activities.6 That act and subsequent measures7 amended FISA to enable the government to obtain information in a greater number of circumstances. The expanded authorities prompted concerns regarding the appropriate balance between national security interests and civil liberties. Perhaps in response to such concerns, Congress established sunset provisions which apply to three of the most controversial amendments to FISA. These amendments include Section 6001(a) of the Intelligence Reform and Terrorism Prevention Act (IRTPA), also known as the lone wolf provision, which simplifies the evidentiary showing needed to obtain a FISA court order to target non-U.S. persons who engage in international terrorism or activities in preparation therefor, specifically by authorizing such orders in the absence of a proven link between a targeted individual and a foreign power;8 Section 206 of the USA PATRIOT Act, which permits multipoint, or roving, wiretaps (i.e., wiretaps which may follow a target even when he or she changes phones) by adding flexibility to the manner in which the subject of a FISA court order is specified;9 and
1 Although FISA is often discussed in relation to the prevention of terrorism, it applies to the gathering of foreign intelligence information for other purposes. For example, it extends to the collection of information necessary for the conduct of foreign affairs. See 50 U.S.C. 1801(e) (2008) (definition of foreign intelligence information). 2 50 U.S.C. 1801-1808 (2008). 3 50 U.S.C. 1822-1826 (2008). 4 50 U.S.C. 1841-1846 (2008). Pen registers capture the numbers dialed on a telephone line; trap and trace devices identify the originating number of a call on a particular phone line. See 18 U.S.C. 3127(3)-(4) (2008). 5 50 U.S.C. 1861-1862 (2008). 6 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, P.L. 107-56 (2001); H.Rept. 107-236, pt. 1, at 41 (2001). 7 See, e.g., Intelligence Reform and Terrorism Prevention Act, P.L. 108-458 (2004). 8 Id. at 6001(a), codified at 50 U.S.C. 1801(b)(1)(C) (2008). 9 P.L. 107-56, 206, codified at 50 U.S.C. 1805(c)(2)(B) (2008).
Section 215 of the USA PATRIOT Act, which broadens the types of records and other tangible things that can be made accessible to the government under FISA.10
These amendments had been scheduled to expire on May 27, 2011.11 However, on the day before they were set to expire, the three provisions were extended for approximately four years, until June 1, 2015.12
Background
FISA, enacted in 1978, provides a statutory framework which governs governmental authority to conduct, as part of an investigation to gather foreign intelligence information, electronic surveillance and other activities to which the Fourth Amendment warrant requirement would apply if they were conducted as part of a domestic criminal investigation.13 Its statutory requirements arguably provide a minimum standard that must be met before foreign intelligence searches or surveillance may be conducted by the government.14
Id. at 215, codified at 50 U.S.C. 1861-2 (2008). The provisions were originally set to expire on December 31, 2005, but were extended multiple times until May 27, 2011. See Congress also modified the three amendments as part of the 2005 reauthorization act and various other measures. See, e.g., P.L. 109-160 (extension until February 3, 2006); USA PATRIOT Improvement and Reauthorization Act of 2005, P.L. 109-177 (extension until December 31, 2009); Department of Defense Appropriations Act, 2010, P.L. 111-118, 1004 (2009) (extension until February 28, 2010); P.L. 111-141 (extension until February 28, 2011); P.L. 112-3 (extension until May 27, 2011). 12 P.L. 112-14 (extension until June 1, 2015). 13 The scope of activities governed by FISA relates to the scope of the Fourth Amendment warrant requirement insofar as the statute refers to the warrant requirement in its definitions. See 50 U.S.C. 1801 (restricting the definition of electronic surveillance to instances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes) (emphasis added). 14 But see CRS Report R40888, Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, by Elizabeth B. Bazan and Jennifer K. Elsea, at 29-33 (While the congressional intent to cabin the Presidents exercise of any inherent constitutional authority to engage in foreign intelligence electronic surveillance may be clear from the exclusivity provision in FISA and from the legislative history of the measure, some support may be drawn from the [Foreign Intelligence Surveillance] Court of Reviews decision in In re Sealed Case for the position that the President continues to have the power to authorize warrantless electronic surveillance to gather foreign intelligence outside the FISA framework). 15 U.S. Const. amend. IV. 16 See Katz v. United States, 389 U.S. 347, 357 (1967) ([S]earches conducted outside the judicial process without prior approval by judge or magistrate are per se unreasonable under the Fourth Amendmentsubject only to a few specifically established and well delineated exceptions.).
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requirement does not apply, government activity is generally subject to a reasonableness test under the Fourth Amendment.17 The extent to which the warrant requirement applies to the governments collection of foreign intelligence is unclear. In a 1972 case, the Supreme Court invalidated warrantless electronic surveillance of domestic organizations on Fourth Amendment grounds, despite the governments assertion of a national security rationale.18 However, it indicated that its conclusion might be different in a future case involving the electronic surveillance of foreign powers or their agents, within or outside the United States.19 In a 2002 case, the Foreign Intelligence Surveillance Court of Review upheld FISA, as amended by the USA PATRIOT Act, against a Fourth Amendment challenge.20 The court assumed, without deciding the question, that FISA court orders do not constitute warrants for purposes of the Fourth Amendment analysis. Relying on a general reasonableness analysis, it nonetheless upheld such orders, emphasizing both the privacy protections in the statutory framework and the governmental interest in preventing national security threats.21 Thus, although they apply to similar government activities, different standards govern FISA court orders and warrants issued by judges in criminal investigations. Search warrants in the general criminal law context must be justified by indicia of criminal conduct. In contrast, a substantial purpose of court orders obtained pursuant to FISA must be the collection of foreign intelligence information.22 Although both FISA orders and criminal warrants require impartial judicial review to determine whether probable cause exists, the propositions that must be supported by probable cause are substantially different in the two frameworks. In the case of a FISA court order, the FISC, in authorizing electronic surveillance or a physical search, must find probable cause to believe both (1) that the person targeted by the order is a foreign power or its agent, and (2) that the subject of the search (i.e., the telecommunications or place to be searched) is owned, possessed, or will be used by the target.23
Also called the general balancing, general reasonableness, or totality-of-the circumstances test, it requires a court to determine the constitutionality of a search or seizure by assessing, on the one hand, the degree to which [a search or seizure] intrudes upon an individuals privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. Samson v. California, 547 U.S. 843, 848 (2006). 18 U.S. v. U.S. District Court, 407 U.S. 297, 321-24 (1972) (also referred to as the Keith case, so named for the District Court judge who initially ordered disclosure of unlawful warrantless electronic surveillance to the defendants). 19 Id. at 321-22. See also In re Directives, 551 F.3d 1004 (U.S. Foreign Intell. Survellance Ct. Rev. 2008) (holding that the foreign intelligence surveillance of targets reasonably believed to be outside of the U.S. qualifies for the special needs exception to the warrant requirement); CRS Report R40888, Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, by Elizabeth B. Bazan and Jennifer K. Elsea, at 912 (discussing courts differing application of the Fourth Amendment to searches for the purpose of foreign intelligence collection). 20 In re Sealed Case, 310 F.3d 717 (Foreign Intell. Survellance Ct. Rev. 2002). 21 Id. at 738-46. 22 See, e.g., 50 U.S.C. 1804(a)(7)(B) (2008). Prior to 2001, the statute had required that the purpose of a FISA warrant be foreign intelligence collection. 23 50 U.S.C. 1805(a)(3) (2008) (electronic surveillance); Id. at 1824(a)(3) (physical searches). In contrast, federal criminal search warrants require probable cause to believe that instrumentalities, evidence, or fruits of a crime will be found in the place to be searched. See Fed. R. Crim. P. 41(c). Criminal warrants authorizing electronic surveillance additionally require probable cause to believe that the target is engaged in criminal activities, that normal investigative techniques are insufficient, and that the facilities that are the subject of surveillance will be used by the target. 18 U.S.C. 2518(3) (2008).
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Additional USA PATRIOT Act amendments to national security letter authorities resembled the 215 amendment governing FISA orders for the production of documents, discussed infra. In both cases, the relevant amendments broadened the predicate circumstances which trigger authority for the request of documents. National security letters previously required the government to demonstrate a connection to a foreign power or its agent. The USA PATRIOT Act amendments authorize their issuance when documents sought are shown to be relevant to an investigation to protect against international terrorism or foreign spying. The 215 amendment makes an analogous change. Unlike the 215 amendment, however, the national security letter amendment contains no sunset provision.
Historical Context
The historical impetus for the lone wolf provision involved Zacarias Moussaoui, one of the individuals believed to be responsible for the 9/11 terrorist attacks. During the examination of the events leading up to the attacks, it was reported that investigations regarding Moussaouis involvement were hampered by limitations in FISA authorities.30 Specifically, FBI agents investigating Moussaoui suspected that he had planned a terrorist attack involving piloting commercial airliners, and had detained him in August of 2001 on an immigration charge.31 The FBI agents then sought a court order under FISA to examine the contents of Moussaouis laptop
(...continued) (S.D.N.Y. 2004); Doe v. Gonzales, 386 F.Supp.2d 66 (D.Conn. 2005). In a decision which post-dates the reauthorization, John Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008), the U.S. Court of Appeals for the Second Circuit held that the national security letter provision related to electronic communications records is unconstitutional to the extent that it imposes a nondisclosure requirement without government-initiated judicial review in which the government bears the burden of proving that nondisclosure is necessary. 30 NATL COMM. ON TERRORIST ATTACKS UPON THE U.S., The 9/11 Commission Report, at 273-274 [hereinafter 9/11 Commn Rep.] 31 Id. at 273. Moussaoui, a French national, was present in the United States with an expired visa.
computer.32 However, the agency apparently concluded that it had insufficient information at that time to demonstrate that Moussaoui was an agent of a foreign power as then required by FISA.33 Prior to its amendment, FISA authorized the FISC to approve, among other things, physical searches of a laptop only if probable cause existed to believe the laptop was owned or used by a foreign power or its agent.34 The definition of a foreign power included groups engaged in international terrorism or activities in preparation therefor.35 Individuals involved in international terrorism for or on behalf of those groups were considered agents of a foreign power.36 In the weeks leading up to the attacks, it appears that the FBI encountered an actual or perceived insufficiency of information demonstrating probable cause to believe that Moussaoui was acting for or on behalf of an identifiable group engaged in international terrorism.37
Legislative Responses
Following these revelations, a number of legislative proposals were put forth to amend the definition of agents of a foreign power under FISA so that individuals engaged in international terrorism need not be linked to a specific foreign power.38 One such amendment was ultimately enacted with passage of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA).39 Section 6001 of the legislation, known as the lone wolf provision, provides that persons, other than citizens or permanent residents of the U.S., who are engaged in international terrorism are presumptively considered to be agents of a foreign power.40 The provision obviates any need to provide an evidentiary connection between an individual and a foreign government or terrorist group. Critics of the lone wolf provision argued that the laptop in the Moussaoui case could have been lawfully searched under FISA or the laws governing generic criminal warrants.41 Critics also expressed concern that the simplified lone wolf standard would lead to FISA serving as a substitute for some of our most important criminal laws.42 Proponents of the provision noted that the increased self-organization among terror networks has made proving connections to identifiable groups more difficult. Thus, a lone wolf provision is
Id. at 273-274. Id. at 274. Based upon this conclusion, the FBI declined to submit a FISA application to the FISC. 34 50 U.S.C. 1821-1824 (2001). 35 50 U.S.C. 1801(a)(4) (2001). At the time, foreign powers also included foreign governments, entities controlled by those governments, and factions of foreign nations and foreign-based political organizations that are not substantially composed of United States persons. Id. at (a)(1-6) 36 50 U.S.C. 1801(b)(2)(C) (2001). 37 See 9/11 Commn Rep. at 274. It is unclear whether a search of Moussaouis laptop before September 11, 2001, would have provided enough information to prevent or minimize those attacks. 38 S. 2586, 107th Cong. (2002); S. 113, 108th Cong. (2003). 39 S. 2845, 108th Cong. (2004) (enacted). 40 P.L. 108-458, 6001(a), codified at 50 U.S.C. 1801(b)(1)(3) (2008). 41 See S.Rept. 108-40 at 33-41 (additional views of Senator Leahy and Senator Feingold on a similar lone wolf provision in S. 113). 42 Id. at 73 (additional views of Senator Feingold).
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necessary to combat terrorists who use a modern organizational structure or who are selfradicalized.43
Roving Wiretaps
Section 206 of the USA PATRIOT Act amended FISA to permit multipoint, or roving, wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified.44 It is often colloquially described as allowing FISA wiretaps to target persons rather than places.
Background
Prior to enactment of 206, the scope of electronic surveillance authorized by a court order was limited in two ways. First, the location or facility that was the subject of surveillance had to be identified.45 Second, only identifiable third parties could be directed by the government to facilitate electronic surveillance.46 Conducting electronic surveillance frequently requires the assistance of telecommunications providers, landlords, or other third parties. Furthermore, telecommunications providers are generally prohibited from assisting in electronic surveillance for foreign intelligence purposes, except as authorized by FISA.47 In cases where the location or facility was unknown, the identity of the person needed to assist the government could not be specified in the order. Therefore, limiting the class of persons that could be directed to assist the government by a FISA court order effectively limited the reach to known and identifiable locations.
S.Rept. 108-40 at 4-6. But see Letter from the U.S. Department of Justice to Hon. Patrick J. Leahy, at 5 (Sept. 14, 2009) (acknowledging that the amendment has not yet been relied upon in an investigation). 44 P.L. 107-56, 206, codified at 50 U.S.C. 1805(c)(2)(B) (2008). 45 See 50 U.S.C. 1805(c)(1)(B) (2001) (requiring FISA warrants to specify the nature and location of each of the facilities or places at which electronic surveillance will be directed). 46 See 50 U.S.C. 1805(c)(2)(B) (2001). 47 See 50 U.S.C. 1809(a) and 1810 (2008). 48 P.L. 107-56, 206, codified at 50 U.S.C. 1805(c)(2)(B) (2008). 49 P.L. 107-108, 314(a)(2)(A).
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This section was further amended by the USA PATRIOT Improvement and Reauthorization Act of 2005 to require that the FISC be notified within 10 days after surveillance begins to be directed at any new facility or place.50 In addition, the FISC must be told the nature and location of each new facility or place, the facts and circumstances relied upon to justify the new surveillance, a statement of any proposed minimization procedures (i.e., rules to limit the governments acquisition and dissemination of information involving United States citizens) that differ from those contained in the original application or order, and the total number of facilities or places subject to surveillance under the authority of the present order.51
the test for determining the sufficiency of the warrant description is whether the place to be searched is described with sufficient particularity to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.60
Applying this test, the Ninth Circuit held that roving wiretaps under Title III satisfied the particularity clause of the Fourth Amendment.61 The court in this case relied upon the fact that targets of roving wiretaps had to be identified and that they were only available where the targets actions indicated an intent to thwart electronic surveillance.62 Critics of roving wiretaps under FISA may argue that 206 increases the likelihood that innocent conversations will be the subject of electronic surveillance. They may further argue that the threat of these accidental searches of innocent persons is precisely the type of injury sought to be prevented by the particularity clause of the Fourth Amendment. Such a threat may be particularly acute in this case given the fact that there is no requirement under FISA that the target of a roving wiretap be identified, although the target must be specifically described.63
Background
In 1976, the Supreme Court held that an individuals bank account records did not fall within the protection of the Fourth Amendments prohibition on unreasonable searches and seizures.66 Subsequently, Congress passed laws protecting various types of transactional information, but built in exceptions to provide some access to statutorily protected records sought for counter intelligence purposes.67 These exceptions comprise the authority for national security letters,
Id. at 1444 (internal quotation marks omitted). Id. at 1445. 62 Id. See also United States v. Bianco, 998 F.2d 1112, 1124 (2nd Cir. 1993) (similarly holding that a provision authorizing roving bugs under Title III was constitutional). 63 50 U.S.C. 1804(a)(3), 1805(c)(1)(B) (2008). 64 The gathering of intelligence information not concerning a U.S. person was authorized by a technical amendment to 215 passed a few months after its enactment. See P.L. 107-56, 215, amended by P.L. 107-108, 314, codified at 50 U.S.C. 1861 (2008). 65 50 U.S.C. 1861(a) (2008). 66 U.S. v. Miller, 425 U.S. 435 (1976). The rationale was that persons have a diminished expectation of privacy when information sought has already been revealed to a third party. 67 See CRS Report RL33320, National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments, by Charles Doyle, at 3-4.
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discussed supra, which are relied upon to compel the production of records in limited circumstances. In 1998, Congress first amended FISA to authorize the production of documents not available through national security letters. Four types of documents initially could be sought in foreign intelligence or international terrorism investigations, including records from common carriers, public accommodation facilities, storage facilities, and vehicle rental facilities.68 Applications for orders under this section had to be made by FBI agents with a rank of Assistant Special Agent in Charge or higher and investigations could not be conducted solely on the basis of activities protected by the First Amendment.69 Under these procedures the FISC would issue an order if, inter alia, the application contained specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.70 Recipients of an order under this section were required to comply with it, and were also prohibited from disclosing to others that an order had been issued.71
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customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person, the application must be approved by one of three high-ranking FBI officers.77
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records.84 Once a petition for review is submitted by a recipient, a FISC judge must determine whether the petition is frivolous within 72 hours.85 If the petition is frivolous, it must be denied and the order affirmed.86 The order may be modified or set aside if it does not meet the requirements of FISA or is otherwise unlawful.87 Appeals by either party may be heard by the Foreign Intelligence Court of Review and the Supreme Court.88 Judicial review of nondisclosure orders operates under a similar procedure,89 but such orders are not reviewable for one year after they are initially issued.90 If the petition is not determined to be frivolous, a nondisclosure order may be set aside if there is
no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.91
A petition to set aside a nondisclosure order may be defeated if the government certifies that disclosure would endanger the national security or interfere with diplomatic relations.92 Absent any finding of bad faith, such a certification is to be treated as conclusive by the FISC. If a petition is denied, either due to a certification described above, frivolity, or otherwise, the petitioner may not challenge the nondisclosure order for another year.93 Appeals by either party may be heard by the Foreign Intelligence Court of Review and the Supreme Court.94
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report indicates that the FBI withdrew at least one such request because the FISC had indicated that it would not sign the order due to First Amendment concerns.97 The report identified several issues related to the implementation of 215 for Congress consideration. For example, it noted that no settled procedure governs situations in which providers, in response to a 215 request for documents, submit information that is outside of the scope of the 215 order. It also stated that in at least one instance, the FBI had issued a national security letter to obtain the same information that had been the subject of a 215 request that was withdrawn due to First Amendment concerns.98 It also concluded that the interim minimization procedures, promulgated by the Justice Department to fulfill a requirement that it implement rules to limit the governments acquisition and dissemination of information involving United States citizens, were inadequate.99
97 Id. at 33. In indicating that it would deny the application, the FISC appears to have decided that the facts were too thin and that this request implicated the targets First Amendment rights. Id. at 68. 98 Id. at 5. 99 Id. at 6. 100 P.L. 112-14 (extension until June 1, 2015). 101 P.L. 109-177, 102(b). The relevant section of FISA will then provide that, upon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance. 50 U.S.C. 1805(c)(2) (2001). 102 The sunset will not repeal the provision of FISA that permits a FISA warrant to omit the identify of facilities or places that will be subject to electronic surveillance. However, the authority for most new roving wiretaps may be effectively repealed because new orders may not direct unspecified persons to assist with surveillance. 103 P.L. 109-177, 102(b). Access will then be limited to records held by common carriers, public accommodation facilities, physical storage facilities, and vehicle rental facilities. 50 U.S.C. 1862(c)(2) (2001). 104 50 U.S.C. 1862(b)(2)(B) (2001). 105 None of the extensions have affected the grandfather provisions.
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potential offenses that took place, before the provisions sunset date.106 Thus, for example, if a non-U.S. person were engaged in international terrorism before the sunset date of June 1, 2015, he would still be considered a lone wolf for FISA court orders sought after the provision has expired. Similarly, if an individual is engaged in international terrorism before that date, he may be the target of a roving wiretap under FISA even if authority for new roving wiretaps expired.
P.L. 107-56, 224(b); P.L. 108-458, 6001(b) (referencing PATRIOT Act sunset provision in P.L. 107-56, 224(b)).
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