The USA PATRIOT Act was passed by the United States Congress in 2001 as a response to the September 11, 2001 attacks. It has ten titles, each containing numerous sections. Title II: Enhanced Surveillance Procedures granted increased powers of surveillance to various government agencies and bodies. This title has 25 sections, with one of the sections (section 224) containing a sunset clause which sets an expiration date, December 31, 2005, for most of the title's provisions. This was extended twice: on December 22, 2005 the sunset clause expiration date was extended to February 3, 2006 and on February 2 of the same year it was again extended, this time to March 10.

Title II contains many of the most contentious provisions of the act. Supporters of the Patriot Act claim that these provisions are necessary in fighting the war on terrorism, while its detractors argue that many of the sections of Title II infringe upon Constitutionally protected individual and civil rights.

The sections of Title II amend the Foreign Intelligence Surveillance Act of 1978 and its provisions in 18 U.S.C., dealing with "Crimes and Criminal Procedure". It also amends the Electronic Communications Privacy Act of 1986. In general, the Title expands federal agencies' powers in intercepting, sharing, and using private telecommunications, especially electronic communications, along with a focus on criminal investigations by updating the rules that govern computer crime investigations. It also sets out procedures and limitations for individuals who feel their rights have been violated to seek redress, including against the United States government. However, it also includes a section that deals with trade sanctions against countries whose government supports terrorism, which is not directly related to surveillance issues.

Overview

Title II covers all aspects of the surveillance of suspected terrorists, those suspected of engaging in computer fraud or abuse, and agents of a foreign power who are engaged in clandestine activities (in other words, spying). In particular, the title allows government agencies to gather "foreign intelligence information" from both US and non-US citizens, which is defined in section 203 of the title. Section 218 changed the requirements to obtain a FISA surveillance to include that a "significant purpose'''' of the surveillance is to "obtain foreign intelligence information" where formerly it was required to be "the primary purpose." The change in definition was meant to remove a legal "wall" between criminal investigations and surveillance for the purposes of gathering foreign intelligence, which hampered investigations when criminal and foreign surveillance overlapped. However, that this wall even existed was found by the Foreign Intelligence Surveillance Court of Review to have actually been a long-held misinterpretation by government agencies. Section 203 also gave authorities the ability to share information gathered before a federal grand jury with other agencies.

Though not related to surveillance, the title also covers trade sanctions against the Taliban — a group which was determined by the Secretary of State to have repeatedly provided support for acts of international terrorism – and the export of agricultural commodities, medicine, or medical devices is now pursuant to one-year licenses issued and reviewed by the United States Government. It also excluded export of agricultural commodities, medicine, or medical devices to the Government of Syria and to the Government of North Korea.

Scope of allowed surveillance The title allows surveillance to intercept communications via pen register or trap and trace devices. It does not allow these surveillance measures to be used in violation of the First Amendment rights of U.S. citizens. To assist in an investigation undertaken to protect against international terrorism or clandestine intelligence activities, the title allows for the seizure of communications records (section 215) and any records of session times, durations of electronic communication as well as any identifying numbers or addresses of the equipment that was being used (section 210). Such orders may be granted ex parte, and once they are granted – in order to not jeopardize the investigation – the order may not disclose the reasons behind why the order was granted. Section 209 made it easier for authorities to gain access to voicemail as they no longer must apply for a wiretap order, and instead just apply for a normal search warrant.

All orders granted under section 215 must be disclosed to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate. Every six months, the Attorney General must also provide a report to the Committees on the Judiciary of the House of Representatives and the Senate which details the total number of applications made for orders approving requests for the production of tangible things and the total number of such orders either granted, modified, or denied.

Under section 211, the United States Code was amended to allow the government to have access to the records of cable customers, with the notable exclusion of access to records revealing cable subscriber selection of video programming from a cable operator.

Disclosure Section 212 stopped a communications provider from disclosing the contents of communications with another party. However, if the provider "reasonably" (not defined) believes that an emergency involving immediate danger of death or serious physical injury to any person is imminent, then the communications provider can now disclose this information without fear of liability. The provider may also disclose communications at the request of a government agency, if the customer allows it to be disclosed, or in cases where they must do so to protect their rights or property. Section 212 was later repealed by the Homeland Security Act of 2002 and was replaced with a new and permanent emergency disclosure provision.

Surveillance orders In order for surveillance to be carried out, the United States Attorney General or his subordinates (so designated under section 201) may authorize a federal judge to grant a surveillance order to the FBI or other Federal agency. Each of the orders granted must be reviewed by one of 11 district court judges, of which at any one time three must live within 20 miles of the District of Columbia (see section 208).

Title II amended the U.S. Code to allow a magistrate judge to issue a warrant outside of their district for any orders that relate to terrorism (section 219). Section 220 of the title also gave a Federal court judge the power to issue nationwide service of search warrants for electronic surveillance.

Under FISA, any agency may require a common carrier, landlord, custodian, or other person provide them with all information, facilities, or technical assistance necessary to accomplish ongoing electronic surveillance. They must also protect the secrecy of and cause as little disruption to the ongoing surveillance effort as possible. This was further tightened in section 206. Section 222 further limited the sort of assistance an agency may require, and provided for compensation of any person who rendered surveillance assistance to the government agency. Section 225 allows for legal immunity to any provider of a wire or electronic communication service, landlord, custodian, or other person that provides any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance.

Liability due to unauthorized surveillance Section 223 allows any party who has had their rights violated due to the illegal interception of communications to take civil action against any party who undertook the illegal surveillance.

Sunset

Section 224 (Sunset) is a sunset clause. Title II and the amendments made by the title originally would have ceased to have effect on December 31, 2005, with the exception of the below sections. However, on December 22, 2005, the sunset clause expiration date was extended to February 3, 2006, and then on February 2, 2006 it was further extended to March 2010. Of the fourteen permanent sections, eleven belong to Title II.

+ Permanent Title II Sections Section Section title 203(a) Authority to share criminal investigation information: Authority to share Grand Jury information 203(c) Authority to share criminal investigation information: Procedures 205 Employment of translators by the Federal Bureau of Investigation 208 Designation of judges 210 Scope of subpoenas for records of electronic communications 211 Clarification of scope 213 Authority for delaying notice of the execution of a warrant 216 Modification of authorities relating to use of pen registers and trap and trace devices 219 Single-jurisdiction search warrants for terrorism 221 Trade sanctions 222 Assistance to law enforcement agencies

Further, any particular foreign intelligence investigations that are ongoing will continue to be run under the expired sections. Sections 215–unrestricted seizures allowed, including that of medical records, for example–and 206 ("roving wiretaps") have sunsets on different dates, as does Section 702. The time when one will next be reviewed is due to happen in December, 2023.

Commentary Various organizations have commented on Title II. Some of the most significant commentary has come from the Electronic Privacy Information Center (EPIC), the Electronic Frontier Foundation (EFF), the American Bar Association (ABA), the American Civil Liberties Union (ACLU) and from the United States government.

American Bar Association

The ABA passed resolutions that asked the U.S. government "to conduct a thorough review of the implementation of the powers granted to the Executive Branch under the [USA PATRIOT] Act before considering legislation that would extend or further expand such powers ...." and "to conduct regular and timely oversight including public hearings ... to ensure that government investigations undertaken pursuant to the Foreign Intelligence Surveillance Act ... do not violate the First, Fourth, and Fifth Amendments of the Constitution ...." They also set up a website, Patriot Debates to discuss issues in relation to the USA PATRIOT Act. Various people debated specific sections of Title II in great depth on the site.

Section 203 Kate Martin, the director of the Center for National Security Studies, argued that section 203 and 905 should be modified as she maintains the Act fails to discriminate between information gathered between terrorist and non-terrorist investigations. She believes that the Act should be modified to include some privacy safeguards: before information is gathered she believes that the court should approve the information transfer to make sure that it is necessary for ongoing activities by the agencies involved; that information shared should be limited to information relevant to investigations into terrorism; that only those people who have access to such information should actually need it to do their jobs (currently those who are not directly related to the investigation can gain access to the information); and information gathered should be marked as confidential and measures put into place to stop the inappropriate dissemination of such information.Kate Martin, "Why Sections 203 and 905 Should be Modified" (undated), accessed January 2, 2005. Her views were opposed by Viet Dinh, who believed that such alterations would hinder terrorism investigations.

Section 206