[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



     IMPLEMENTATION OF THE USA PATRIOT ACT: SECTION 212--EMERGENCY 
    DISCLOSURE OF ELECTRONIC COMMUNICATIONS TO PROTECT LIFE AND LIMB

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 5, 2005

                               __________

                           Serial No. 109-14

                               __________

         Printed for the use of the Committee on the Judiciary


    Available via the World Wide Web: http://www.house.gov/judiciary


                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  ADAM SMITH, Washington
MIKE PENCE, Indiana                  CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, Chief of Staff-General Counsel
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

                 HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California        ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin                SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida                  MAXINE WATERS, California
STEVE CHABOT, Ohio                   MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida                  WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas

                      Jay Apperson, Chief Counsel

            Elizabeth Sokul, Special Counsel on Intelligence

                         and Homeland Security

                 Jason Cervenak, Full Committee Counsel

                  Michael Volkov, Deputy Chief Counsel

                     Bobby Vassar, Minority Counsel


                            C O N T E N T S

                              ----------                              

                              MAY 5, 2005

                           OPENING STATEMENT

                                                                   Page
The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Chairman, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     1
The Honorable Robert C. Scott, a Representative in Congress from 
  the State of Virginia, and Ranking Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................     2
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     2

                               WITNESSES

The Honorable William E. Moschella, Assistant Attorney General, 
  Office of Legislative Affairs, U.S. Department of Justice
  Oral Testimony.................................................     5
  Prepared Statement.............................................     7
Mr. Willie T. Hulon, Assistant Director, Counterterrorism 
  Division, Federal Bureau of Investigations
  Oral Testimony.................................................    14
  Prepared Statement.............................................    16
Mr. Orin S. Kerr, Associate Professor of Law, George Washington 
  University Law School
  Oral Testimony.................................................    18
  Prepared Statement.............................................    20
Mr. James X. Dempsey, Executive Director, Center for Democracy 
  and Technology
  Oral Testimony.................................................    27
  Prepared Statement.............................................    28

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Robert C. Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................    51
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan..........    51

 
     IMPLEMENTATION OF THE USA PATRIOT ACT: SECTION 212--EMERGENCY 
    DISCLOSURE OF ELECTRONIC COMMUNICATIONS TO PROTECT LIFE AND LIMB

                              ----------                              


                         THURSDAY, MAY 5, 2005

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:05 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Howard 
Coble (Chair of the Subcommittee) presiding.
    Mr. Coble. Good morning, ladies and gentlemen. The 
Subcommittee on Crime, Terrorism, and Homeland Security holds 
an oversight hearing today on the implementation of the USA 
PATRIOT Act's investigative authority for criminal cases. 
Section 212 is covered by the sunset provision of the PATRIOT 
Act. The witnesses will discuss the benefits and problems with 
section 212 and will provide more detail on how the section 
works.
    With that said, let me provide a short summary of what 
section 212 does and why the section was included in both the 
House version that passed unanimously out of this Committee and 
in the Senate version of the PATRIOT Act.
    Chapter 121 of the Criminal Code provides for what is 
unlawful and what is lawful access to stored wire and 
electronic communications. These stored communications include 
voice mail, e-mail, and phone messages, for instance. The 
Federal Criminal Code makes it a crime to access stored 
communications unless the access is covered by one of the 
specified exceptions.
    Prior to the enactment of the PATRIOT Act, there was no 
exception for providers to voluntarily disclose information 
related to life and limb-type emergencies. There was also a 
strange disparity in the law as there was an exception for 
communications providers protecting their rights of property to 
disclose content information, such as the contents of an e-
mail, but there was no exception to disclose non-content 
information under these same circumstances. Section 212 
addressed both of these issues.
    I look forward to hearing the testimony from our witnesses 
today on their support and concern for section 212 and I am now 
pleased to recognize the distinguished gentleman from Virginia, 
the Ranking Member, Mr. Bobby Scott.
    Mr. Scott. Thank you, Mr. Chairman, and I again want to 
express my appreciation to you for devoting the time and 
attention to the issue of the sunsetted provisions on the 
PATRIOT Act by holding this series of hearings that you have 
held on the provisions, including the hearing today on section 
212, which involves emergency disclosures under the act.
    Now, what the hearings so far has revealed to me is the 
extent to which we have eliminated many of the checks and 
balances to secret access by the Government to private, 
confidential citizen communications and information. Section 
212 and other provisions--with section 212 and other 
provisions, we have effectively changed provisions designed to 
protect private information from disclosure without due process 
to provisions designed to allow or require indiscriminate 
disclosure of information to the Government, and such 
disclosures can be made with virtually no detached oversight or 
any other checks and balances, such as required notice before 
or after the fact, requiring reporting either to a court or to 
Congress or to the public, or requiring sanctions or remedies 
for wrongful acts or abuses.
    Moreover, with the liberal information sharing provisions 
that we have, and other provisions, this secretly acquired 
information, confidential information, can be spread all over 
town without the person to whom the information pertains ever 
knowing about it. Further, there still appears to be no 
restrictions on how long or by whom the information can be 
maintained.
    We need to hear how many times these authorities have been 
used where no terrorism or imminent threat was involved, or how 
many times no criminal proceedings or other actions ensued to 
show whether or not the intrusions were warranted. We are left 
to simply trust the Government officials to always do the right 
thing, at the right time, in the right way, with complete 
immunity, without having to bother the court, the Congress or 
the public looking over their shoulder while they're doing it.
    And, Mr. Chairman, we should use the information we have 
gleaned from these extraordinary secret powers that we have 
authorized to put an ordinary checks and balances, such as 
notice, court oversight, reporting requirements, sanctions, 
remedies, and failing to do so would turn on its head not only 
the Electronic Communications Privacy Act and the intent of the 
fourth amendment of the Constitution, but the healthy mistrust 
of Government the Framers of our system intended, as well.
    So, Mr. Chairman, we look forward to the testimony of our 
witnesses on how these extraordinary powers are being used and 
how we can best provide for the necessary checks and balances 
that our system calls for and how to work to implement those 
checks and balances. Thank you, Mr. Chairman.
    Mr. Coble. I thank the gentleman from Virginia, and I'm now 
pleased to recognize the distinguished gentleman from Michigan, 
the Ranking Member of the full Judiciary Committee, Mr. 
Conyers.
    Mr. Conyers. Thank you, Chairman Coble, and to my Ranking 
Subcommittee Member, Bobby Scott, whose statement I endorse 
completely.
    I started out 24 hours ago supporting a conditional 
extension of section 212. This morning, I am opposed to even 
extending it. I want it to sunset.
    This is the open door, the crack in the door for almost 
anything to happen. And this is a provision in the PATRIOT Act 
that has nothing to do with terrorism. So the provision being 
sold to Congress as a way to protect our critical 
infrastructure from terrorists has been a boon to those seeking 
information on everyday crimes, sidestepping the court system 
completely, and this section of the PATRIOT Act is not even 
limited to cases where danger is immediate. It goes too far and 
in too many cases, especially that have nothing to do with 
terrorism.
    There are no safeguards to ensure that those who scare 
Internet and phone companies into turning over customer 
information are doing so only when spending that extra hour to 
get a warrant is truly impossible. There are not even 
safeguards after the fact.
    And plainly, there is no justification for avoiding 
judicial review or notice to the target that the so-called 
emergency is over. Indeed, we afford that courtesy to suspected 
terrorists under the Foreign Intelligence Surveillance Act 
after an emergency order is not extended by the FISA court. So 
I hope that we would extend the same rights to American 
citizens suspected of a far less crime.
    The Department of Justice has yet to explain how this 
section has helped prevent terror attacks or saved anybody's 
life or limb from terrorists. Now, we will hear about 
kidnappings and computer hackers, but it seems to me that this 
has been a little sleeping problem here that I commend the 
Ranking Member Scott for putting his finger on, and I am 
particularly interested in hearing from witness Dempsey about 
the off-the-books surveillance activity and the increasing 
storage of communications under control of third parties which 
could threaten, if not eviscerate, the fourth amendment.
    So I'm happy to join you, Chairman Coble, as we listen to 
the witnesses this morning.
    Mr. Coble. I thank the gentleman from Michigan, and we have 
been joined, as well, by the distinguished gentleman from 
Arizona, Mr. Flake.
    Gentlemen, it's the practice of the Subcommittee to swear 
in all witnesses appearing before it, so if you would please 
stand and raise your right hands.
    Do each of you solemnly swear that the testimony you are 
about to give this Subcommittee shall be the truth, the whole 
truth, and nothing but the truth, so help you, God?
    Mr. Moschella. I do.
    Mr. Hulon. I do.
    Mr. Kerr. I do.
    Mr. Dempsey. I do.
    Mr. Coble. Let the record show that each of the witnesses 
answered in the affirmative, and you may be seated.
    Again, we have a distinguished panel before us. As Mr. 
Scott said, we have done this in a very thorough, ongoing way. 
I think this is our ninth--eighth, our eighth hearing on this 
subject, so we have plowed the field thoroughly.
    And gentlemen, I apologized to last Tuesday's panel for my 
raspy, gravelly throat. I have fallen victim to the damnable 
April-May pollen attack, so you all bear with me. I know it 
doesn't sound very good.
    Our first witness today is Mr. William Moschella, the 
Assistant Attorney General in the Office of Legislative Affairs 
at the U.S. Department of Justice. Prior to joining the 
Department of Justice, Mr. Moschella served in several 
positions in the House of Representatives, including Chief 
Legislative Counsel and Parliamentarian for the House Judiciary 
Committee. He is a graduate of the University of Virginia and 
the George Mason University Law School.
    Our second witness is Mr. Willie Hulon, the Assistant 
Director of the Counterterrorism Division of the FBI. Mr. Hulon 
began his career as an officer with the Memphis Police 
Department and joined the FBI as a Special Agent and has served 
the agency in several capacities, both as an investigator and 
as a supervisor. Mr. Hulon is a graduate of the Rhodes College 
and the FBI Academy.
    Our next witness is Mr. Orin Kerr, the Associate Professor 
of Law at the George Washington University School of Law. Prior 
to his current position, Mr. Kerr worked at the Department of 
Justice in the Criminal Division's Computer Crime and 
Intellectual Property Section and in the U.S. Attorney's Office 
for the Eastern District of Virginia. He served as a law clerk 
for Judge Garth of the Third Circuit Court of Appeals and for 
the United States Supreme Court Justice Anthony M. Kennedy. He 
was awarded his undergraduate degree from Princeton University, 
a Master's in mechanical engineering from Stanford University, 
and his law degree from the Harvard School of Law.
    Our final witness is Mr. Jim Dempsey, Executive Director of 
the Center for Democracy and Technology, and before I introduce 
Mr. Dempsey, I want to thank him. I believe, Mr. Dempsey, is 
this your third appearance before us?
    Mr. Dempsey. It's my second, Mr. Chairman, but I appreciate 
helping you work through these issues.
    Mr. Coble. Well, you are apparently not gun-shy because you 
came back for another bite. [Laughter.]
    It is good to have you with us.
    Prior to joining the Center for Democracy and Technology, 
Mr. Dempsey was Deputy Director of the Center for National 
Security Studies and also served as an Assistant Counsel to the 
House Judiciary Committee's Subcommittee on Civil and 
Constitutional Rights. Mr. Dempsey is a graduate of the Yale 
University and the Harvard Law School.
    Gentlemen, as we have previously advised you all, we try to 
operate under the 5-minute rule here. We have your testimony. 
It's been examined and will be reexamined. But if you would 
keep a sharp lookout on the panels that appear before you, when 
the amber light appears, that is your warning that the fiddler 
will have to soon be paid. You'll have a minute to go. Then 
when the red light appears, that will be your signal that your 
5 minutes have elapsed.
    It's good to have you all with us. Mr. Moschella, if you 
will start us off.

  TESTIMONY OF THE HONORABLE WILLIAM E. MOSCHELLA, ASSISTANT 
     ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, U.S. 
                     DEPARTMENT OF JUSTICE

    Mr. Moschella. Thank you, Mr. Chairman. I appreciate to be 
before the Subcommittee today. I want to associate myself with 
the comments of Mr. Scott. I think the American people would be 
heartened--should be heartened to see the hard work of this 
Committee.
    I would like to personally recognize and thank two members 
of your staff, former colleagues of mine. I know a lot of staff 
has worked very hard in putting this series of hearings 
together, but particularly the work of Beth Sokul and Bobby 
Vassar. I know you have recently dubbed him ``the Granddaddy,'' 
but their hard work is certainly appreciated.
    Mr. Coble. If you'll suspend, Mr. Moschella, before I 
dubbed him Granddaddy, I got the permission of the Ranking 
Member. I did not get Granddaddy's permission. [Laughter.]
    Mr. Moschella. I'd also like to indicate that there has 
been a tremendous amount of hard work at the Department of 
Justice in responding to the hearing request and the needs of 
the Subcommittee, and I would like to recognize--and many, many 
individuals are involved, but I'd like to recognize two in 
particular. First is Mr. Dave Blake of my office, the Office of 
Legislative Affairs, and the second is Mr. Matthew Berry. 
Without these two individuals, the hearings would not have come 
off as well as they had, and we appreciate their hard work very 
much.
    Mr. Chairman, as you know, 16 provisions of the USA PATRIOT 
Act are set to expire on December 31, 2005, including section 
212, which we are addressing today. The tools contained in the 
PATRIOT Act have been essential weapons in our arsenal to 
combat terrorists and criminals alike. For this reason, we 
strongly urge Congress to reauthorize all provisions of the USA 
PATRIOT Act that are scheduled to sunset at the end of this 
year.
    Mr. Chairman, you summarized the changes made by section 
212. Let me just add an exclamation point on a point that you 
made.
    Section 212 amended the law to permit, but not require, a 
service provider to disclose either content or non-content 
customer records to Federal authorities in emergencies 
involving immediate risk of death or serious physical injury to 
any person. Notably, this provision does not obligate service 
providers to review customer communications in search of such 
imminent dangers, nor does it impose an obligation to disclose 
records once a provider becomes aware of the emergency. It is 
purely voluntary authority.
    Second, section 212, as you stated, amended the Electronic 
Communications Privacy Act, or ECPA, to allow service providers 
to disclose non-content information in an effort to protect 
their own rights and property. Plainly, section 212 of the 
PATRIOT Act allows electronic communication service providers 
to disclose either customer records or the content of 
customers' communications to a Government entity in any 
emergency situation that involves immediate death--immediate 
danger of death or serious physical injury. This is analogous 
to allowing citizens to tell police that while attending a 
party at a friend's house, they overheard two people discussing 
a violent crime they were about to commit.
    Furthermore, section 212 works in practice. It has been 
used often and has already saved lives. I'll give just a few 
examples.
    Section 212 was utilized recently in a case involving a 
series of e-mail threats against an Islamic mosque located in 
Detroit, Michigan. In this case, Michael Bratisax and John 
Barnett both allegedly sent threatening e-mail messages on 
different occasions from their home computers in New York to 
the Imam of the Islamic Center of America in Detroit. The 
threats included death to the Imam as well as general threats 
against all Muslims in America.
    The threats were initially reported by the administrator of 
the mosque to the FBI, and thereafter, the FBI conducted an 
investigation. During the course of the investigation, due to 
the life-threatening nature of the e-mail messages, the FBI 
contacted an Internet service provider who then provided the 
FBI with the requested information the same day the request was 
made.
    Section 212 permitted the ISP to voluntarily turn over the 
necessary subscriber information in this case without fear of 
civil liability, which allowed the FBI to identify Bratisax and 
Barnett quickly. Both Bratisax and Barnett have been arraigned 
and charged with the Federal crimes of obstructing the free 
exercise of religion and transmitting threatening 
communications in interstate commerce. They are both awaiting 
trial.
    Section 212 has further proven to be extremely useful in 
cases involving missing children. Section 212 assisted 
authorities with the rescue of a 13-year-old girl who had been 
lured from her home and was being held captive by a man she met 
online. When agents received the report from a local police 
department that the girl had disappeared the previous day from 
her parents' home, they did what all agents do. They 
interviewed the parents, girl's friends, one of whom reported 
that the girl had discussed leaving home with a 38-year-old man 
she had met online.
    In the next couple of days, an anonymous caller contacted 
the Bureau and stated that he had chatted online recently with 
an individual claiming to having taken the girl from 
Pittsburgh. Based on that information, the FBI agents in 
Pittsburgh quickly requested information from an ISP pursuant 
to section 212. With the information provided in response to 
that request, agents were able to locate the perpetrator. They 
immediately went to his residence in Herndon, Virginia. At his 
residence, they rescued the child victim, who was found chained 
up in his bedroom, and, in his basement, investigators 
discovered what amounted to a dungeon filled with various 
torture devices.
    The suspect subsequently was arrested, pleaded guilty to 
charges of traveling with the intent to engage in sexual 
activity with a minor, and sexual exploitation of a minor, and 
was sentenced to a prison term of over 19 years. Had the 
provision of the information by the ISP been slowed, as it 
would if section 212 were allowed to sunset, who knows what 
unspeakable horrors this 13-year-old girl would have been 
subject to by this dangerous predator.
    Mr. Chairman, I urge the Committee to lift the sunset on 
section 212 and all the expiring provisions of the PATRIOT Act 
and appreciate it.
    Mr. Coble. I thank the gentleman.
    [The prepared statement of Mr. Moschella follows:]

        Prepared Statement of the Honorable William E. Moschella



    Mr. Coble. Mr. Moschella, you put me in a bind. In order to 
be fair to the other witnesses, I gave you an extra minute, so 
if you all need 6 minutes, folks, you may take them.
    Let me first welcome the gentleman from--the distinguished 
gentleman from Massachusetts, Mr. Delahunt, has joined us, and 
the distinguished gentleman from Florida, Mr. Feeney. Good to 
have you all with us. I think the distinguished lady from Texas 
was here, Ms. Jackson Lee, but I think she's gone.
    Mr. Hulon, good to have you. Hold on just a minute.
    Mr. Moschella, I want to thank you for having singled out 
Beth and Bobby. They have indeed done yeoman's work and they 
have been assisted by other staffers, too. The staff has 
contributed very significantly and very tirelessly in this 
effort and I thank you for acknowledging that.
    Mr. Hulon, good to have you with us.

       TESTIMONY OF WILLIE T. HULON, ASSISTANT DIRECTOR, 
  COUNTERTERRORISM DIVISION, FEDERAL BUREAU OF INVESTIGATIONS

    Mr. Hulon. Thank you, sir. Good morning, Mr. Chairman, 
Ranking Member Scott, and Members of the Subcommittee. It is my 
pleasure to appear before you today with Assistant Attorney 
General William Moschella of the Department of Justice, Office 
of Legislative Affairs, to discuss how the Federal Bureau of 
Investigations has used the important provisions of the USA 
PATRIOT Act to better combat terrorism and other serious 
criminal conduct.
    At the Committee's request, I will specifically focus on 
the emergency disclosure provision of the USA PATRIOT Act, 
which is scheduled to sunset at the end of this year, and 
provide you with some examples of how this provision has 
assisted the FBI's efforts to protect national security. I 
think you will find this provision has played an instrumental 
role in helping the FBI fulfill its primary mission of 
protecting America from further terrorist acts.
    Prior to the passage of the USA PATRIOT Act, Federal law 
contained no special provision authorizing, even in emergency 
situations, the voluntary disclosure by electronic 
communication service providers of customer records or 
communications to Federal authorities. If, for example, an 
Internet service provider voluntarily disclosed information to 
the Government, the ISP could have been sued civilly. The 
Electronic Communications Privacy Act did not contain statutory 
exceptions which allowed disclosures, even if a terrorist act 
could be prevented or lives could be saved.
    Section 212 of the PATRIOT Act allows a service provider, 
such as an ISP, to voluntarily provide the content and records 
of communications related to a subscriber if it involves an 
emergency related to death or serious injury. Section 212 has 
been used often and has saved lives.
    Many of the emergency disclosures have directly supported 
FBI terrorism investigations. This provision has also been used 
to quickly locate kidnapping victims, protect children in child 
exploitation cases, and respond to bomb and death threats. 
Because many international service providers are located within 
the U.S., the FBI legal attaches have also used this provision 
to assist foreign law enforcement officials with similar 
emergencies, such as death threats on prosecutors and other 
foreign officials. In instances where time is of the essence, 
giving service providers the authority to voluntarily release 
information without a court order or grand jury subpoena 
facilitates the Government's rapid response to crisis 
situations where the lives of innocent people may be in 
jeopardy.
    I would like to share with you a few examples which 
illustrate the important role section 212 has played in 
assisting the FBI in its terrorism investigations.
    The first relates to a threat to destroy a mosque in El 
Paso, Texas. In the spring of 2004, a threatening e-mail was 
sent to the El Paso Islamic Center. The e-mail warned that if 
hostages were not released in Iraq, the mosque would be burned 
to the ground. FBI agents utilizing section 212 were able to 
quickly obtain information regarding the e-mail from electronic 
service providers. As a result, Jared Bjarnason of El Paso was 
identified, located, and arrested before he could carry out 
this threat. Without the emergency access afforded by section 
212, the outcome of this incident may not have been as 
successful. As it turned out, Bjarnason pled guilty and was 
sentenced to 18 months in Federal prison.
    In another example, many of the details of which are 
classified, the FBI was attempting to identify and locate 
suspected terrorists both within the United States and abroad. 
Utilizing the provisions of section 212, the FBI obtained 
subscriber information from several Internet service providers 
based upon a national security need. Subsequently, an 
individual was identified who was determined to be 
communicating with a known terrorist organization overseas. 
Similar results have been repeated throughout many of our field 
offices and divisions.
    Section 212 was used in another FBI terrorism investigation 
involving attacks against U.S. military forces in Iraq. The 
investigation determined that a particular terrorist 
organization was likely responsible for the attacks and might 
be planning further attacks against additional targets. 
Pursuant to section 212 of the PATRIOT Act, information was 
obtained from an Internet service provider which linked 
individuals in this terrorist organization. The information 
provided has been invaluable to the FBI and we believe it will 
help us locate additional subjects in Iraq.
    In a final example, section 212 was used in an FBI criminal 
investigation relating to the murder in Kansas of Bobbie Jo 
Stinnett, who was 8 months pregnant at the time. Ms. Stinnett 
was found murdered in her home. Her unborn child had been cut 
from her body with a kitchen knife. An examination of her home 
computer revealed that she had been communicating on the 
Internet in connection with her dog breeding business. A person 
identifying herself as Darlene Fischer posed as a potential 
customer. On the same day of the murder, she asked Ms. Stinnett 
for directions to her residence.
    Upon using 212, FBI agents and examiners at the regional 
computer forensic laboratory in Kansas City were able to obtain 
information from Internet companies which led to the 
identification and arrest of an individual whose true name was 
Lisa Montgomery. Montgomery was arrested and subsequently 
confessed to the murder. The infant daughter of Mrs. Stinnett 
was recovered less than 24 hours after the murder.
    Some critics have suggested that the computer service 
providers should not be able to disclose customer records or 
communications without a court order or grand jury subpoena. 
The elimination of the provisions of section 212 would severely 
impact the FBI's ability to respond to certain crisis 
situations.
    First, section 212 allows a service provider to disclose 
information voluntarily not only when the Government seeks it, 
but when the service provider itself becomes aware of an 
emergency that poses a threat to life and limb. To require a 
court order or a subpoena in such a case would require the 
service provider first to contact authorities and provide 
sufficient basis for authorities to seek an order, then would 
require authorities to obtain that order, and then provide it 
to the service provider. Real-time implementation of this 
process would consume precious time in any emergency.
    Second, even if in a more unusual case where the Government 
seeks information from a service provider in response to an 
emergency, obtaining a court order or subpoena could still take 
a significant amount of time. In some emergency situations even 
a matter of minutes can mean the difference between life and 
death.
    In closing, I look forward to discussing with the Committee 
ways in which the PATRIOT Act has facilitated our ability to 
conduct terrorism investigations and am happy to answer your 
questions. Thank you, sir.
    Mr. Coble. Thank you, Mr. Hulon.
    [The prepared statement of Mr. Hulon follows:]

                 Prepared Statement of Willie T. Hulon

    Good morning Mr. Chairman, Ranking Member Scott and Members of the 
Subcommittee. It is my pleasure to appear before you today, with 
Assistant Attorney General William Moschella of the Department of 
Justice, Office of Legislative Affairs, to discuss how the Federal 
Bureau of Investigation has used the important provisions of the USA 
PATRIOT Act to better combat terrorism and other serious criminal 
conduct. At the Committee's request, I will specifically focus on the 
Emergency Disclosure provision of the USA PATRIOT Act, which is 
scheduled to sunset at the end of this year, and provide you with some 
examples of how this provision has assisted the FBI's efforts to 
protect national security. I think you will find this provision has 
played an instrumental role in helping the FBI fulfill its primary 
mission of protecting America from further terrorist attacks.
    Prior to the passage of the USA PATRIOT Act, federal law contained 
no special provision authorizing, even in emergency situations, the 
voluntary disclosure by electronic communication service providers of 
customer records or communications to federal authorities. If, for 
example, an Internet service provider ((ISP() voluntarily disclosed 
information to the government, the ISP could have been sued civilly. 
The Electronic Communications Privacy Act did not contain statutory 
exceptions which allowed disclosures, even if a terrorist act could be 
prevented or lives could be saved.
    Section 212 of the USA PATRIOT Act, allows a service provider, such 
as an ISP, to voluntarily provide the content and records of 
communications related to a subscriber if it involves an emergency 
related to death or serious injury. Section 212 has been used often and 
has saved lives. Many of the emergency disclosures have directly 
supported FBI terrorism investigations. This provision has also been 
used to quickly locate kidnaping victims, protect children in child 
exploitation cases, and respond to bomb and death threats. Because many 
international service providers are located within the U.S., the FBI 
Legal Attaches have also utilized this provision to assist foreign law 
enforcement officials with similar emergencies, such as death threats 
on prosecutors and other foreign officials. In instances where time is 
of the essence, giving service providers the authority to voluntarily 
release information without a court order or grand jury subpoena, 
facilitates the government's rapid response to crisis situations where 
the lives of innocent people may be in jeopardy.
    I'd like to share with you a few examples which illustrate the 
important role Section 212 has played in assisting the FBI in its 
terrorism investigations. The first relates to a threat to destroy a 
mosque in El Paso, Texas. In the spring of 2004, a threatening e-mail 
was sent to the El Paso Islamic Center. The e-mail warned that if 
hostages were not released in Iraq, the mosque would be burned to the 
ground. FBI Agents utilizing Section 212 were able to quickly obtain 
information regarding the e-mail from electronic service providers. As 
a result Jared Bjarnason, of El Paso, was identified, located and 
arrested before he could carry out his threat. Without the emergency 
access afforded by Section 212, the outcome of this incident may not 
have been as successful. As it turned out, Bjarnason pled guilty and 
was sentenced to 18 months in federal prison.
    In another example, many of the details of which are classified, 
the FBI was attempting to identify and locate suspected terrorists both 
within the U.S. and abroad. Utilizing the provisions of Section 212, 
the FBI obtained subscriber information from several Internet Service 
Providers based upon a national security need. Subsequently, an 
individual was identified who was determined to be communicating with a 
known terrorist organization overseas. Similar results have been 
repeated throughout many of our field divisions.
    Section 212 was used in another FBI terrorism investigation 
involving attacks against U.S. military forces in Iraq. The 
investigation determined that a particular terrorist organization was 
likely responsible for the attacks and might be planning further 
attacks against additional targets. Pursuant to Section 212 of the USA 
PATRIOT Act, information was obtained from an Internet Service Provider 
which linked individuals in this terrorist organization. The 
information provided has been invaluable to the FBI and we believe it 
will help us locate additional subjects in Iraq.
    In a final example, Section 212 was used in an FBI criminal 
investigation relating to the murder in Kansas of Bobbie Jo Stinnett, 
who was eight months pregnant. Mrs. Stinnett was found murdered in her 
home. Her unborn child had been cut from her body with a kitchen knife. 
An examination of her home computer revealed that she had been 
communicating on the Internet in connection with her dog-breeding 
business. A person identifying herself as Darlene Fischer posed as a 
potential customer. On the same day of the murder, she asked Mrs. 
Stinnett for directions to her residence. Using Section 212, FBI agents 
and examiners at the Regional Computer Forensic Laboratory in Kansas 
City were able obtain information from Internet companies which led to 
identification and Lisa Montgomery. Montgomery was arrested and 
subsequently confessed to the murder. The infant daughter of Mrs. 
Stinnett was recovered less than 24 hours after the murder.
    Some critics have suggested that computer service providers should 
not be able to disclose customer records or communications without a 
court order or a grand jury subpoena. The elimination of the provisions 
of Section 212 would severely impact the FBI's ability to respond to 
certain crisis situations. First, Section 212 allows a service provider 
to disclose information voluntarily not only when the government seeks 
it, but also when the service provider itself becomes aware of an 
emergency that poses a threat to life and limb. To require a court 
order or subpoena in such a case would require the service provider 
first to contact authorities and provide a sufficient basis for 
authorities to seek such an order, then would require authorities to 
obtain the order and serve it on the provider, and only then would the 
critical information be made available. Real time implementation of 
this process would consume precious time in an emergency. Second, even 
in the more usual case where the government seeks information from a 
service provider in response to an emergency, obtaining a court order 
or subpoena could still take a significant amount of time. In some 
emergency situations, even a matter of minutes might mean the 
difference between life and death.
    In closing, I look forward to discussing with this Committee the 
ways in which the USA PATRIOT Act has facilitated our ability to 
conduct terrorism investigations and am happy to answer your questions. 
Thank you.

    Mr. Coble. We've been joined by the distinguished gentleman 
from Texas, Mr. Gohmert, and the distinguished lady from Texas, 
Ms. Jackson Lee, is back with us. It's good to have you back 
with us, Ms. Jackson Lee.
    Mr. Kerr?

 TESTIMONY OF ORIN S. KERR, ASSOCIATE PROFESSOR OF LAW, GEORGE 
                WASHINGTON UNIVERSITY LAW SCHOOL

    Mr. Kerr. Mr. Chairman, Ranking Committee Member Scott, and 
Members of the Subcommittee, it's a pleasure to be here today 
to discuss section 212 of the USA PATRIOT Act, a section that I 
do support. It's a narrow exception and one quite consistent, 
even much narrower than similar exceptions in fourth amendment 
law.
    I think if we look at what the PATRIOT Act is trying to do 
and what the statutory law of electronic surveillance is trying 
to do, the goal should be to try to match the protections to 
traditional fourth amendment law, the fourth amendment of the 
Constitution, which, of course, prohibits unreasonable searches 
and seizures, and section 212 does exactly that.
    It is essentially the exigent circumstances exception to 
the fourth amendment, which says that law enforcement might 
ordinarily need a search warrant to, for example, search a 
house, enter property, seize property, but, if there are 
competing concerns, whether the destruction of evidence, need 
to catch a suspect, or some other legitimate law enforcement 
need, in effect, the courts have allowed a balancing between 
privacy interests and the competing security interests and said 
law enforcement can act without a search warrant in an 
emergency situation.
    And section 212 does just that, although actually in a much 
narrower way. The exception is limited to emergencies. It's 
limited to protecting human life, serious bodily injury, and, I 
think, is quite consistent with even narrower than equivalent 
fourth amendment standards.
    Without section 212, this is what has to happen. This is 
actually what happened at the Justice Department when I was 
there before section 212, which is that a provider, say an 
Internet service provider, would contact the Government, and 
say, ``We want to disclose records.'' The FBI or whatever the 
agency on the other side would say, ``We can't accept those 
records. We know it makes sense. You should be able to disclose 
them. But wait, we can't accept them.''
    The FBI or the law enforcement agency had to then contact 
the prosecutor. The prosecutor had to obtain a court order, 
find a judge, get the order signed, serve the order on the ISP, 
and then that would compel the ISP to disclose what, of course, 
the ISP wanted to do anyway. It would add a delay of anywhere 
from a few hours to maybe a day, and I think it didn't really 
serve a strong law enforcement interest. I think there is a 
noticed interest, which I will get to shortly, but I don't 
think it is served by requiring the Government to get a court 
order to compel a provider to do what that provider wants to do 
anyway, given the strong, compelling interest.
    So, one question is, what is to keep this exception from 
swallowing the rule? What is to keep an emergency disclosure 
exception from basically becoming the norm? And I think what 
keeps that from happening is that privacy is good business. If 
you are running an Internet service provider, you don't want to 
disclose a lot of information to law enforcement.
    Why? Well, one obvious reason is if information is 
disclosed, you might get sued. And, of course, you are going to 
be very worried if you are, say, at the general counsel's 
office in the Internet service provider about the policies in 
terms of working with law enforcement, because as soon as you 
step over the line of the Electronic Communications Privacy 
Act, you are subject to civil suit, and that is just bad 
business. It is bad business not only from the standpoint of 
getting sued, it is bad business from the standpoint of 
customer relations. If you are an Internet user, you don't want 
to go to an Internet service provider that you know might be 
willy-nilly giving up your information to law enforcement. 
People like their privacy. So that creates a strong incentive 
from the ISP perspective not to exploit this exception and to 
keep the exception narrow.
    At the same time, I think there is a legitimate concern 
about notice, one problem that arises that was mentioned in the 
prior comments. What's to keep this from being completely 
secret? Do we want this to be off the books? And I think the 
fourth amendment is again the proper guide here. Under the 
fourth amendment, the Government is not required to give notice 
when an exigent circumstances search occurs. They are required 
to give notice when they execute a search pursuant to a warrant 
normally, but not during an exigent circumstances search.
    What tends to happen is that the notice is provided and the 
Government has to then justify its conduct when somebody is 
actually charged, indicted in court, and then the defense 
attorney files a motion to suppress under the fourth amendment, 
saying, ``I think that exigent circumstances, sir, was 
unconstitutional.'' There's a constitutional suppression 
remedy, and, of course, the court can then review the search 
and decide, was this constitutional or not?
    What I think needs to change in the Electronic 
Communications Privacy Act is that some kind of suppression 
remedy needs to be added to have that occur also in statutory 
context. What happens now is somewhat odd in that there is no 
statutory suppression remedy and no constitutional suppression 
remedy. So say you are an Internet customer whose records have 
been disclosed unlawfully, whether through a very close call on 
law enforcement's part or, say, a more egregious violation of 
the statute. You can't then move to suppress the evidence. A 
court is not called on to review the Government's procedure. 
And I think what needs to happen is there needs to be some sort 
of suppression remedy that allows a defense attorney to make a 
similar claim the defense attorney would make in the 
constitutional context.
    I think it would be helpful to have, for example, a good 
faith exception, such as there is in the constitutional 
context. I'm not saying that there should be a rule that the 
slightest error means suppression of the evidence, not at all. 
But there does need to be some sort of way of reviewing the 
exigent circumstances disclosure beyond the civil remedy, 
because at least in the experience of the cases on the books, 
it's just extremely rare for a civil suit to be filed, 
especially in a criminal case where typically the suspects are 
going to be guilty. Most people, guilty defendants, don't file 
civil suits under the Electronic Communications Privacy Act. So 
a civil remedy, I think, is not the answer and some kind of 
statutory suppression remedy would really bring the law into 
alignment with the fourth amendment standard.
    Thank you.
    Mr. Coble. Thank you, Mr. Kerr.
    [The prepared statement of Mr. Kerr follows:]

                   Prepared Statement of Orin S. Kerr



    Mr. Coble. Mr. Dempsey?

 TESTIMONY OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR, CENTER FOR 
                    DEMOCRACY AND TECHNOLOGY

    Mr. Dempsey. Mr. Chairman, Mr. Scott, Members of the 
Subcommittee, thank you for the opportunity to testify today.
    This series of hearings, and the Subcommittee and the 
Committee leadership are to be commended for this series of 
hearings, have offered an unprecedented opportunity to 
understand the provisions of the PATRIOT Act and how they fit 
within the context of the electronic surveillance laws. From 
this kind of detailed, objective inquiry, we can attain the 
balance that was left aside in the haste and emotion of the 
weeks after 9/11.
    Like many of the provisions in the PATRIOT Act, section 212 
is a good idea without sufficient checks and balances. In order 
to understand what is right and what is wrong with section 212 
and similar provisions of the PATRIOT Act, consider what are 
the three key protections surrounding Government access to 
private information under the fourth amendment.
    First, as a general rule, access to communication should be 
subject to prior judicial approval.
    Second, individuals should have notice when the Government 
accesses their private data, either before, during, or after 
the search.
    Third, if the Government acts in bad faith, there should be 
consequences, including making sure that the Government cannot 
use anything improperly seized, and possibly civil remedies.
    These are the three components of a fourth amendment 
search, and the three are independent: judicial approval, 
notice, and consequences for bad faith behavior. When it is 
necessary to create an exception to one of them, that does not 
mean that it's necessary to create an exception to all three.
    For electronic surveillance, Congress has added a fourth 
protection, namely Congressional oversight and public 
accountability through routine statistical reporting on how 
often these techniques are used.
    Now, in the case of the emergency disclosures covered by 
section 212 and described by the Justice Department and the 
FBI, it is sometimes not possible to obtain prior judicial 
approval, and the fourth amendment, as Professor Kerr 
explained, permits exceptions to the warrant requirement in 
emergency situations. But just because there is an emergency 
does not mean we have to dispense with the other protections 
normally accorded by the fourth amendment search.
    In the normal warrantless search, at least the search of a 
home, an office, the person who is the subject of the search is 
notified of the search, often at the very time of the search. 
In a traditional emergency, break in the door, the bad guy is 
there. He is getting the notice. If not, he comes back and 
should find an inventory or some indication of a search. And if 
the police act in bad faith during a warrantless search, they 
cannot use the information they seized.
    Under section 212, none of these other protections are 
available. That's why I call these off-the-books surveillances 
or off-the-books access. Because the information is held by a 
third party, there may be no notice ever to the person whose 
data is disclosed to the Government. The criminal at least gets 
notice at trial. The innocent person whose data is mistakenly 
disclosed to the Government under 212 never receives notice.
    And because there is no statutory suppression rule under 
the historic Communications Act, there may be no consequences 
for bad faith behavior by the Government. That is why Professor 
Kerr has called for a statutory suppression remedy. Professor 
Swire, at an earlier hearing in this series on section 212, 
also called for that, another emergency disclosure provision.
    Finally, we don't even have the oversight of knowing how 
many emergency disclosures there are. I understand that they 
may be very large, I've heard from, informally, some people in 
the industry, especially the disclosure of cell phone location 
information.
    In 2002 in the Homeland Security Act, this Committee 
mandated a 1-year report from the Justice Department on 
disclosures of content under section 212. That report was due 
on November 25, 2003, and as far as I know, it hasn't been 
submitted yet.
    Mr. Chairman, Members of the Committee, we deeply respect 
the work of the Justice Department and the FBI. They do save 
lives. But the Justice Department continues to misrepresent the 
debate before this Subcommittee and before the Congress. Until 
Congressman Conyers came in this morning, I had not heard 
anybody calling for the sunset of section 212 or any other 
provision of the PATRIOT Act. In my view, of course, there 
should be emergency exceptions. But the debate here is supposed 
to be over checks and balances, and so far, the Justice 
Department has refused to engage in that debate, and that's 
forcing people like the Ranking Member, Mr. Conyers, to move to 
a position of saying, if we can't insert checks and balances 
here, if we can't have notice and a reasonable suppression 
remedy and some accountability to Congress, then maybe this 
should sunset, and I think that would be a shame because I 
think there are cases in which this authority is appropriate.
    In 2000, Mr. Chairman, this Subcommittee--or this 
Committee, rather, did take a look at the broader context of 
the Electronic Communications Privacy Act. It did address some 
of the changes that would improve the privacy protections, 
particularly in response to the third-party storage of data 
which falls outside of various protections, and what we need to 
do is to create those checks and balances and those 
protections, giving the Government the tools that it needs but 
making them accountable.
    I look forward to working with you, Mr. Chairman, and the 
other Members of this Subcommittee and the Committee and with 
the Justice Department on trying to achieve those checks and 
balances. Thank you.
    Mr. Coble. Thank you, Mr. Dempsey.
    [The prepared statement of Mr. Dempsey follows:]

                 Prepared Statement of James X. Dempsey

    Chairman Coble, Rep. Scott, Members of the Committee, thank you for 
the opportunity to testify today. As we said when we testified at an 
earlier hearing in this series, the Center for Democracy & Technology 
\1\ (CDT) commends the Subcommittee and the full Committee leadership 
for undertaking these important hearings on the PATRIOT Act. The 
members of this Subcommittee have devoted considerable time to 
understanding the provisions of the PATRIOT Act and how they fit within 
the context of the electronic surveillance laws. From this kind of 
detailed, objective inquiry, we can attain the balance that was left 
aside in the haste and emotion of the weeks after 9/11.
---------------------------------------------------------------------------
    \1\ The Center for Democracy and Technology is a non-profit, public 
interest organization dedicated to promoting civil liberties and 
democratic values for the new digital communications media. Among our 
priorities is preserving the balance between security and freedom after 
9/11. CDT coordinates the Digital Privacy and Security Working Group 
(DPSWG), a forum for computer, communications, and public interest 
organizations, companies and associations interested in information 
privacy and security issues.
---------------------------------------------------------------------------
    CDT's main point in these hearings is that while, of course, the 
law needs to keep pace with changing technology to ensure that 
government agencies have access to information to prevent crime and 
terrorism, those government powers will be no less effective--indeed 
will be more effective--if they are subject to checks and balances. The 
law needs to keep pace with changing technology not only to ensure 
reasonable government access but also to protect privacy, as technology 
makes ever larger volumes of information available for the government 
to acquire from third parties, without satisfying traditional Fourth 
Amendment standards of a warrant and notice. The PATRIOT Act addressed 
only one side of this equation, making government access easier without 
counterbalancing privacy improvements. Now is the time for Congress to 
finish the job and address the privacy side of the equation.
    In CDT's view, there is not a single kind of record or 
communication covered by the PATRIOT Act to which the government should 
be denied access. The question before us--and it is one of the most 
important questions in a democratic society--is what checks and 
balances should apply to government surveillance powers. With respect 
to the particular PATRIOT section at issue in today's hearing, those 
time-honored checks and balances should include:

          First, as a general rule, individuals should have 
        notice when the government acquires their communications.

          Second, surveillance techniques should be subject to 
        judicial review, preferably prior judicial approval, but if 
        that is not possible, judicial review after the fact, with 
        sanctions for abuse of the authority.

          Finally, government surveillance needs to be subject 
        to Congressional oversight and some public accountability, 
        including through routine statistical reports.

Section 212 of the PATRIOT Act fails to include these checks and 
balances.

 PREVENTION OF TERRORISM DOES NOT REQUIRE SUSPENSION OF STANDARDS AND 
                               OVERSIGHT

    At the outset, let me repeat some basic points on which I hope 
there is widespread agreement:

          Terrorism poses a grave and imminent threat to our 
        nation. There are people--almost certainly some in the United 
        States--today planning additional terrorist attacks, perhaps 
        involving biological, chemical or nuclear materials.

          The government must have strong investigative 
        authorities to collect information to prevent terrorism. These 
        authorities must include the ability to conduct electronic 
        surveillance, carry out physical searches effectively, and 
        obtain transactional records or business records pertaining to 
        suspected terrorists.

          These authorities, however, must be guided by the 
        Fourth Amendment and subject to Executive and judicial controls 
        as well as legislative oversight and a measure of public 
        transparency.

           SECTION 212--EMERGENCY DISCLOSURES OF E-MAIL AND 
                      OTHER STORED COMMUNICATIONS

    This hearing focuses on Section 212 of the PATRIOT Act, relating to 
emergency disclosures of e-mail and other stored communications. 
Section 212, like several other electronic surveillance provisions in 
the PATRIOT Act, has no direct connection with terrorism. It applies 
not to intelligence investigations, but to all criminal cases.
    Section 212 allows the government to tell an Internet Service 
Provider (ISP) or telephone company that there is an emergency and the 
ISP or telephone company can then disclose your e-mail, voicemail, or 
other stored communications without even a subpoena, let alone a 
warrant, and never tell you so that you never have an opportunity to 
challenge the disclosure.
-- Increasing storage of communications under control of third parties 
        threatens traditional Fourth Amendment protections
    In our prior testimony, we described the ``storage revolution'' 
that is sweeping the field of information and communications 
technology. ISPs and other service providers are offering very large 
quantities of online storage for e-mail, documents, and, in the latest 
emerging services, for voicemail. Increasingly, ordinary citizens are 
storing information not in their homes but on computer servers, under 
the control of service providers who can voluntarily or under 
compulsion disclose the communications and never have to tell the 
subscribers that their privacy has been compromised.
    This technological revolution, coupled with exceptions like Section 
212, is eroding Fourth Amendment protections. Traditionally, when 
records were stored locally, even if there was an emergency justifying 
an exception to the warrant requirement, you would normally receive 
notice of the search of your home or office. Yet individuals are never 
told of Section 212 disclosures unless the evidence is introduced 
against them at trial. Ironically, under 212, if the e-mail of an 
innocent person is disclosed by mistake, that person will probably 
never be advised that the government has obtained their private data.
-- ``Off the books'' surveillance
    Section 212 represents another in a steadily growing series of 
exceptions to the protections of the electronic communications privacy 
laws. (The computer trespasser provision of Section 217 is another 
example.) Section 212 and similar provisions essentially allow ``off 
the books surveillance''--they define certain government interceptions 
not to be interceptions, and certain disclosures to the government not 
to be disclosures.
    Once an access to communications or data is excluded from the 
coverage of the surveillance laws, not only is it not subject to prior 
judicial approval, but there are no time limits on the period covered 
by the surveillance or disclosure, no minimization requirement, no 
report back to a judge, no notice to the persons who are surveilled 
unless and until the government introduces the evidence against them in 
a criminal trial, no suppression rule for violating the statute's 
standards (no suppression remedy at all if the information is deemed to 
be outside the protection of the Fourth Amendment), and no reports to 
Congress and the public.
    Emergency exceptions are sometimes reasonable, although in an age 
when warrants can be obtained by telephone or fax and presumably even 
by e-mail, see Federal Rule of Criminal Procedure 41(d)(3), and when 
every court should have a duty judge available by cell phone or 
Blackberry 24 hours a day, emergency exceptions to judicial oversight 
should be extremely rare. And they should be subject to checks and 
balances.
-- The potential for government exaggeration of the facts
    The crucial thing to recognize about Section 212 is that the 
information about the emergency will often come from a government 
agent. Rather than going to a judge and getting a warrant, even if time 
and technology permitted it, Section 212 permits a government agent to 
go to a service provider, say there is an emergency, and if the service 
provider reasonably believes there is (even if the government agent was 
exaggerating), the service provider can disclose the records with no 
liability and no notice to the subscriber. Surely, this is an 
invitation to cutting corners, if not more cynical forms of abuse. 
Notice also how placing the reasonable belief on the part of the 
service provider diffuses responsibility: the stored records provisions 
to which this exception was added has no suppression rule for evidence 
improperly obtained, and it does not appear that the civil action and 
administrative discipline provisions of 18 U.S.C. 2707 would apply to 
agents who even intentionally mislead a service provider about the 
existence of an emergency.
    Other parts of Section 212 are non-controversial: It rearranged 
sections 2702 and 2703 of title 18 so that section 2702 now regulates 
all permissive disclosures (of content and non-content records alike), 
while section 2703 covers compulsory disclosures. Second, an amendment 
to the new subsection 2702(c)(3) clarifies that service providers have 
the statutory authority to disclose non-content records to protect 
their rights and property.
    The language of Section 212 covering emergency disclosures of the 
content of communications was rewritten by the act creating the 
Department of Homeland Security. In some ways the new language is 
narrower than the PATRIOT language, while in other ways it is broader 
(it allows disclosure not only to law enforcement but to any government 
entity), but our concerns and recommendations about checks and balances 
pertain to the new language as well. Also, an uncodified provision of 
the Homeland Security Act required government entities obtaining the 
contents of communications under the new emergency exception to report 
to the Attorney General and the Attorney General to file a one-time 
report to Congress in November 2003 on the use of the authority. 
Someone needs to look for that report.
-- Recommended amendments to establish checks and balances
    Checks and balances should be added to Section 212.

          The person whose privacy has been compromised should 
        be notified that his information has been disclosed to the 
        government. This is especially important in cases of mistake--
        where the government obtains records on the wrong person, that 
        person should be notified.

          There should be a statutory remedy for abuse, barring 
        the government from using information if it had mislead the 
        service provider into believing there was an emergency. An 
        additional or alternative protection would be to make it 
        illegal for a government official to intentionally or 
        recklessly mislead a service provider as to the existence of an 
        emergency. Coupled with notice, this could provide a reasonable 
        remedy to persons whose privacy was needlessly invaded.

          To permit ongoing oversight, emergency disclosures of 
        stored communications to the government should be reported to 
        Congress in annual, public statistical reports.

THE BIG PICTURE: PROTECTIONS FOR PRIVACY SHOULD BE UPDATED IN LIGHT OF 
                          CHANGING TECHNOLOGY

    As CDT has noted before, many of the changes in the PATRIOT Act 
appear small in isolation. However, no consideration has been given in 
almost five years to other, long-recognized changes that need to be 
made to strengthen the privacy protections of the electronic 
surveillance laws, including:

          extending Title III's statutory suppression rule to 
        electronic communications, a change even the Justice Department 
        once supported;

          increasing the standard for pen registers and trap 
        and trace devices, to give judges meaningful oversight, a 
        change the full Judiciary Committee supported in 2000;

          eliminating the distinctions between opened and 
        unopened e-mail and between relatively fresh and older e-mail, 
        by bringing all stored e-mail under a warrant standard, another 
        change the Committee supported in 2000;

          establishing a probable cause standard for access to 
        location information, a change this Committee also supported in 
        2000;

          requiring reporting on access to e-mail, also 
        supported by the Committee in 2000.

    With this context in mind, it is easier to see why even some of the 
minor changes in the PATRIOT Act draw concern, for they are part of a 
steady stream of uni-directional amendments that are slowly eroding the 
protections and limits of the electronic privacy laws.

                               CONCLUSION

    CDT supports the Security and Freedom Enhancement (SAFE) Act, a 
narrowly tailored bipartisan bill that would revise several provisions 
of the PATRIOT Act. It would retain all of the expanded authorities 
created by the Act but place important limits on them. It would protect 
the constitutional rights of American citizens while preserving the 
powers law enforcement needs to fight terrorism.
    We look forward to working with this Subcommittee and the full 
Committee as you move forward in seeking to establish some of the 
checks and balances that were left behind in the haste and anxiety of 
October 2001.

    Mr. Coble. Now, we apply the 5-minute rule to ourselves, 
too, gentlemen, so if you all can be as terse as you can when 
you respond.
    Mr. Hulon, the glaring example you gave about the El Paso 
episode, I presume that the agents could not have responded as 
quickly as they did prior to the PATRIOT Act, is that correct?
    Mr. Hulon. That's correct, sir. They were able to get the 
information in regards to the subject who made the threat and 
actually go out to make the arrest or make the approach very 
quickly.
    Mr. Coble. Mr. Moschella and Mr. Hulon, some have argued 
that because this exception has been used more in the criminal 
context than the war on terrorism, that it is probably not a 
good exception. Do you believe this exception is important for 
crimes of terror as well as for, say, for crimes of kidnapping 
and murder, et cetera? If you will comment on that, Mr. 
Moschella, I will start with you.
    Mr. Moschella. Thank you, Mr. Chairman. This is a tool that 
we would use in both terrorism cases and other cases. As the 
one example that I explained to the Committee, this traveler 
case of this 13-year-old girl who was brought across State 
lines for these illicit purposes demonstrates, this is a 
critical tool to save life and limb. When the Congress 
originally considered the PATRIOT Act, it knew that it was 
amending certain statutes that had general applicability for 
all criminal investigation, and this is a needed tool in those 
efforts.
    Mr. Coble. Mr. Hulon?
    Mr. Hulon. Yes, sir. I think it's very important for 
terrorism investigations. Some of the examples that might be 
cited, of course, are ones that end in prosecution. But in 
terrorism investigations, a lot of our work and effort to 
detect or prevent an act a lot of times does not end up with a 
prosecution that gets public notification. A lot of it goes 
with intelligence building that we end up using to further our 
intelligence base and also to work toward identifying groups 
and individuals that are in support of terrorism.
    Mr. Coble. I thank you, sir.
    Mr. Kerr, you made what I believe is a good point when you 
indicated it would be troubling if the law valued the business 
interest of communications providers more highly than 
protecting innocent human lives. Is that not what 212 
addresses? That is, communications providers should disclose 
content information to protect their property and rights, but 
no exception prior to PATRIOT, as I understand it, to disclose 
information that would protect another human being. Comment on 
that, if you would, Mr. Kerr.
    Mr. Kerr. Thank you, Mr. Chairman. I think that's exactly 
right. The Wiretap Act has long had--and the historic 
Communications Act have long had a range of exceptions 
recognizing competing interests, whether they are business 
interests or other interests. And to be honest, when I was at 
the Justice Department before section 212, it always seemed to 
me that Congress just had forgotten to add some sort of an 
exigent circumstances exception. I used to train FBI agents on 
how the statute worked and I remember having to explain to 
people, I said, ``You know, you're not going to believe it, but 
currently, the statute has no exception for exigent 
circumstances like a kidnapping.''
    And so I think it's an important step forward and clearly a 
good idea to add section 212. I think it does say there are 
competing interests and innocent human life is clearly--that's 
clearly a very strong competing interest that should justify 
disclosure.
    Mr. Coble. Thank you, sir.
    Mr. Dempsey, in your testimony, you state that the crucial 
thing to recognize about section 212 is that the information 
about the emergency will often come from a Government agency 
and you indicate that that might be an invitation to cut 
corners. But is it not a voluntary disclosure at that juncture?
    Mr. Dempsey. Mr. Chairman, it is a voluntary disclosure, 
but I think that the service provider is going to be 
predisposed to make the disclosure. They have immunity for 
making a disclosure if they believe, in good faith, that there 
is an emergency, and they will obviously be predisposed to 
believe whatever the Government tells them. They cannot be sued 
civilly if they make the disclosure. They never have to tell 
their customer that they've made the disclosure. And they, in 
fact, might face some liability if they don't make the 
disclosure and somebody ends up injured. So, I think the whole 
presumption has shifted toward the disclosure with no incentive 
on the other side.
    At some level, the service provider should have--I'm not 
questioning the service provider immunity when they believe in 
good faith that there's an emergency. That makes it possible 
for the Government to come in, breathless, a little bit 
exaggerating, perhaps, or believing, rightly or wrongly, that 
there's an emergency when there isn't, and at that point, 
there's no accountability. There's no accountability, I think, 
for the Government, because if the Government is misleading, as 
we have talked about, they suffer no consequences, either.
    Mr. Coble. I thank you, sir. I see my time has expired.
    Before I recognize the gentleman from Virginia, I have a 
physician's appointment, hopefully to help me overcome this 
malady that you all are having to suffer with me, and I want to 
thank the panel for being here in case I don't return. I've 
asked the distinguished gentleman from Florida if he would take 
the gavel in my absence, and I now recognize the gentleman from 
Florida--from Virginia.
    Mr. Scott. Thank you, Mr. Chairman, and I hope you're 
feeling better.
    Let me get a little background where we are. In 1986, we 
passed the Electronic Communications Privacy Act and that is 
the act which prohibited electronic ISPs and what not from 
disclosing information violating your privacy. Prior to that, 
was there anything to prevent an Internet provider from just 
voluntarily giving up your private information?
    Mr. Kerr. Probably not.
    Mr. Scott. And as a result of the----
    Mr. Kerr. Other than their terms of service, but----
    Mr. Scott. A contract?
    Mr. Kerr. Yes.
    Mr. Scott. Now, after '86, there was no exception for 
emergencies?
    Mr. Kerr. There was an exception for information relating 
to a crime that was inadvertently discovered. If the ISP 
inadvertently discovered a threat or information about any 
crime, they could disclose that, but I think it's correct that 
there was a little bit of oversight or Congress was not fully--
that was the first effort. I think they probably did leave out 
the emergency exception.
    Mr. Scott. Now, what is the--is there any problem, Mr. 
Dempsey, proceeding under the emergency but requiring a warrant 
as soon as practicable?
    Mr. Dempsey. Well, that's an interesting point, because 
under title III, which is the basic wiretap law, not for stored 
but for live interception, there is an emergency exception. 
That was created in 1968. And where there's an emergency 
exception under title III for live interception, the Government 
must then go and apply for an order after the fact and if the 
order is denied, it must terminate the surveillance and cannot 
use anything acquired during the claimed emergency if it turns 
out that there wasn't justification.
    Mr. Scott. Is there a poison fruit problem with that 
information that was acquired in the meantime?
    Mr. Dempsey. I think they would be prohibited from using it 
further in their process.
    Mr. Scott. Mr. Dempsey, you talked about the consequences 
of failing to--failing to get the information if it was not an 
emergency and suggested that in bad faith, there should be some 
consequences. Some of us have a problem with the bad faith, the 
good faith exception because you can very easily in good faith 
trample on somebody's rights. And, in fact, the good faith 
exception gives you a perverse incentive to fail to educate 
your law enforcement officials and just hire good old boys that 
just didn't know any better, so they get to court, ``I didn't 
know.''
    Mr. Dempsey. Congressman, I----
    Mr. Scott. I'm in good faith.
    Mr. Dempsey. I definitely agree with you or see where you 
are coming from here. In my recommendations today, I did not 
want to go back and revisit one way or the other the good faith 
exception to the exclusionary rule. The statutory suppression 
rule under title III, under the live interception law, has 
basically been interpreted to have almost a good faith 
exception, as well. It is not applied in the case of minor or 
inadvertent noncompliance. So I was taking the good faith 
exception as a given here and saying that, at the least----
    Mr. Scott. In other words, we'll just debate that at 
another point.
    Mr. Dempsey. That's what I was saying.
    Mr. Scott. Okay. One of the problems with the exclusionary 
rule generally is the safeguard, and, I think, frankly, for the 
defendant to protect people, the exclusionary rule is the only 
meaningful sanction that there is. As has been pointed out, 
suing somebody isn't going to get you anywhere. The court 
jailing of police officers for messing up a warrant isn't going 
anywhere. The exclusionary rule actually works because it 
removes the incentive to mess up.
    One of the problems in this case is that if you're not a 
defendant, you have no standing to complain. Is that, Mr. 
Moschella, is that right? If they get my information and you're 
the defendant, I have no--if they illegally got my information 
and they use it against you, I have no standing. You might have 
some standing to complain, but I have no standing to complain, 
is that right?
    Mr. Moschella. Mr. Scott, I think that the determination is 
a fact-specific one as to whether or not the Frank amendment, 
it's the Frank amendment, section 2707 of title 18, does apply 
to this entire chapter.
    If I may add one thing to what Mr. Dempsey added, I am not 
aware--there certainly is no good faith exception written into 
the statutory exclusionary rule. In fact, that rule is so 
strict that if you had two criminals, two co-conspirators who 
didn't trust each other and were illegally taping each other, 
so violating the Wire Act, and that information came into the 
possession of the Government to use against one of them, we 
would not be able to use it. That's how strict that statutory 
suppression provision----
    Mr. Dempsey. I was talking about Government behavior, 
Congressman.
    Mr. Feeney. [Presiding.] Thank you. The gentleman's time 
has expired.
    The gentleman from Arizona, Mr. Flake, is recognized.
    Mr. Flake. I thank the Chairman and the witnesses.
    With this and other sections of the PATRIOT Act, we often 
hear from the Department of Justice with regard to whether you 
need a statute to protect this or that, well, we would never do 
that, or our agents, FBI agents would never do this or that. 
Mr. Hulon, can you tell me, have there been instances where FBI 
agents have been reprimanded or disciplined for filing false 
affidavits or misleading affidavits before a FISA court or 
anywhere else?
    Mr. Hulon. I don't recall that there have been situations 
where that has occurred recently. I'm just not aware, sir.
    Mr. Flake. According to Judge Lambert, a FISA court did bar 
one FBI agent from ever appearing before the court again for 
filing a series of misleading affidavits. Were you aware of 
that?
    Mr. Hulon. I'm not aware of the details on that one, sir.
    Mr. Flake. Is anyone here aware of that? Mr. Moschella, 
have you heard of that?
    Mr. Moschella. I'm generally aware of it, yes, sir.
    Mr. Flake. Okay. Do you know of any action that has been 
taken against this agent?
    Mr. Moschella. I'd have to check into that.
    Mr. Flake. Could you get back to my office on that?
    Mr. Moschella. Yes, sir.
    Mr. Flake. That goes to one of the issues that I think a 
lot of us have. We're kind of told--the last defense is, 
``Well, you don't need a statute for that because our agents or 
this Department just wouldn't do that.'' But yet we hear of an 
instance here where that did occur and you're unable to tell us 
whether that agent was even disciplined. So it would be 
useful--Mr. Dempsey, can you comment on that?
    Mr. Dempsey. I think you're right, Congressman. I think 
that it is very hard to think of a case where agents have been 
disciplined, and the case you refer to with the FISA court, of 
course, I think that that issue was addressed in the PATRIOT 
Act, as well, in a way that that agent would no longer be doing 
anything wrong for what he did in those cases before the FISA 
court.
    Mr. Flake. Is that some good faith exemption because of 
him, or----
    Mr. Dempsey. No, that has--I mean, I think the issue there 
had to do with what was at the time believed to be the primary 
purpose test. My understanding of it is that that agent was 
claiming that there was no criminal interest in the subject 
when, in fact, there was. Now, the fact that there's a criminal 
interest in a subject, a FISA court can still grant the order. 
That was sort of a strange byproduct of the way that the FISA 
got misinterpreted pre-PATRIOT Act.
    Mr. Flake. When there are provisions in the PATRIOT Act 
which really require the court or the judge of jurisdiction or 
whomever, that they shall issue a warrant of some type, that it 
really is incumbent on the Department or the agency to police 
their own to make sure that individuals are not filing 
misleading affidavits. If there is one example that we know of 
here, and the agency, the Department has taken no action at 
all, then that doesn't inspire much confidence on the part of 
Members here that the agencies and the Department can police 
their own. So I would just bring that up.
    Mr. Dempsey. Congressman, and again, this partly goes to an 
issue that I know you're concerned about, which is the issue of 
notice----
    Mr. Flake. Right.
    Mr. Dempsey.--which is how is anybody ever going to know 
that there's been a violation if they haven't been told, and 
even the Frank amendment to the PATRIOT Act would almost never 
get invoked and there would be no discipline unless somebody 
complained. And if the person whose privacy has been 
compromised is never told that the Government has accessed 
their information, there is no complaint, no remedy, no 
consequences.
    Mr. Flake. Now specifically--oh, go ahead.
    Mr. Moschella. Mr. Flake, while I don't know the specific 
disposition of that particular pre--my recollection was that 
was a pre-PATRIOT Act series of affidavits, I can tell you that 
the Department does review these matters and does take action. 
There was a rather highly publicized case in which, in a 
prosecution, the Department learned that certain materials were 
not provided to the defendant and on the Department's motion 
vitiated the prosecution in conviction. We do take these things 
seriously. We follow the law. We instill some training, the 
need to follow the rule of law, and it is absolute high 
priority for the Department.
    Mr. Feeney. The gentleman's time has expired. I do believe 
we are going to try to have another round, Congressman.
    Mr. Flake. I thank the Chairman.
    Mr. Flake. The gentleman from Michigan is recognized.
    Mr. Conyers. Thank you, Mr. Chairman.
    We have an interesting situation here. Two former Judiciary 
staffers, Moschella and Dempsey. We trained you guys. 
[Laughter.]
    One says, no checks and balances are needed in this 
provision. Let's just reinstitute it and let it go. The other 
at the other end of the table says, well, there's got to be 
some safeguards put into this situation.
    Now, we just checked what the definition of emergency is, 
if you could call it a definition. Death or physical injury. 
Well, that could happen in anything. I mean, for that to be--
that is not a serious judgment. What section is that in--
section 2701.
    Now, I ask you, what's with this emergency provision, Mr. 
Dempsey? We're living in an age of Blackberries, faxes, e-
mails, everything. I mean, it's not like you're on a desert 
island and you've got to make this judgment real quick. 
Anything can bring about injury. We could be talking about a 
misdemeanor.
    So with the greatest respect for the Ashcroft PATRIOT Act, 
which was substituted--which substituted the Judiciary 
Committee's PATRIOT Act in the Rules Committee that awful 
night, what's with the emergency provision? We have, I think, 
implied good faith exceptions running throughout this. If 
they're not implied, they're used in real life situations. And 
we changed the reasonable belief proposition for emergencies to 
good faith. We've lowered the standard. So who would get 
injured or killed or put in harm's way if this provision in a 
thoughtful discussion and study of the Subcommittee and full 
Committee of Judiciary, we dropped it.
    Mr. Dempsey. Again, Congressman, I'm actually going to 
argue in favor of keeping this provision. I agree----
    Mr. Conyers. But I want to know--I know there's a great 
argument in favor of keeping it, but what harm would come if we 
didn't keep it?
    Mr. Dempsey. I think there are--and I'm going to make the 
Justice Department's case for it here--I think there are 
circumstances that are true emergencies, and what we try to do 
in this provision is we try to come up with the right set of 
words that would narrowly define it. In fact, if you go back to 
the PATRIOT Act provision, it talked about immediate.
    Mr. Conyers. Okay. Give the----
    Mr. Dempsey. And immediate was dropped, and we've gone back 
and forth----
    Mr. Conyers. Give me not ten or five, give me one example 
of a good faith emergency that would be disadvantaged if this 
provision--if the PATRIOT Act--if this were sunsetted. Describe 
something to me. Don't point to Moschella. You two were both 
trained together, so I don't want you playing us off, as they 
say, now that you're back before the Committee on the other 
side. No, there isn't any, that's why.
    Mr. Dempsey. No, I think, again----
    Mr. Conyers. There isn't any that you can't immediately get 
your order without terming it an emergency. Life is, 
everything's an emergency in criminal justice.
    Mr. Dempsey. Well, that I agree with at some level, 
Congressman, which is why I say we need to look at these other 
checks and balances. When you're in the heat of the 
investigation, every case is a priority.
    Mr. Conyers. Of course.
    Mr. Dempsey. I agree with that. But some of them really 
are. You may think that they all are, but some of them really 
are. And I think if you scratch some of these cases, they prove 
not to be as serious----
    Mr. Conyers. Of course they don't----
    Mr. Dempsey. But some of them are, I think.
    Mr. Conyers. Well, I know you think that, but that's why 
you cannot give me one example. Everything is an emergency. You 
don't need to write in something this broad and then have the 
Department of Justice tell you, we don't want any checks or 
balances.
    Mr. Feeney. The gentleman's time----
    Mr. Conyers. Against some checks or balances or none, I'm 
for dropping this provision.
    Mr. Feeney. The gentleman's time has expired, mercifully 
for some of the witnesses, but, Mr. Moschella, in fairness, 
whether it's real or a genuinely good faith hypothetical, do 
you have any response to some very penetrating questions that 
Mr. Conyers asked about why this provision and a definition of 
emergency may be appropriate or not?
    Mr. Moschella. Well, Mr. Conyers cited to the statute and 
the statute specifically talks about death or serious physical 
injury, not just any old emergency, and I would submit that the 
examples in our testimony are examples where delay could have 
resulted in death. I did not explain the case of the 88-year-
old woman who was kidnapped in Wisconsin. This is a case, I 
think it may have been in Chairman Sensenbrenner's district or 
it was near to his district. She was kidnapped, and we had 
information that we knew if we went to the ISP they would help 
us locate this individual. She was put in a shack during the 
winter, in the cold winter in Wisconsin. Luckily, she did not 
die. It was a freezing cold series of four nights, and we were 
able to save her.
    Mr. Conyers. Without this provision, she would have died?
    Mr. Feeney. Reclaiming my time, I don't think the witness 
testified to that, but did say that there was the potential for 
damage, and also in or near the gentleman from Michigan's 
district, we had the issue with the mosque that the FBI 
identified a threat to, but only because they had the emergency 
access to the ISP, as I understood it, where they were able to 
identify the two individuals engaged in the potential threat to 
kill the Imam and others practicing at the mosque. Am I under 
the wrong impression, Mr. Moschella or--Mr. Hulon, go ahead.
    Mr. Hulon. Yes, sir. Actually, those examples are examples 
of emergencies where we did use that provision of the statute 
to get the information very quickly and respond. And when 
you're dealing with a situation like that where you have a 
threat of death or bodily injury, if there is an opportunity 
for us to get that information and move on it very quickly 
without delay, then that's in the benefit of the Government as 
well as the potential victims.
    Mr. Feeney. But in fairness to Mr. Conyers's question, the 
truth is, we can't prove that but for section 212 there would 
have been this death to the 88-year-old or the Imam or anybody 
else. It's just that there potentially was enhanced death 
threat.
    Mr. Moschella. Mr. Feeney, I don't know that to a 
metaphysical certitude. What I can tell you is that when the 
FBI went into this home in Herndon and found a 13-year-old girl 
chained up in the bedroom of the sexual trafficker, the 
individual who traveled with the young child, does anyone 
reasonably believe that he was not--that she was going to be 
damaged even further? I don't think anyone could reasonably 
come to any conclusion but that.
    Mr. Conyers. Chairman----
    Mr. Feeney. In deference to--I have a great amount of 
respect. I will yield briefly if you won't take too much of my 
time.
    Mr. Conyers. One sentence, Chairman Feeney, referencing the 
Michigan case. Bratisax and Barnett have been arraigned and 
charged with the Federal crimes of obstructing the free 
exercise of religious beliefs and transmitting threatening 
communications in interstate commerce. Now tell me about the 
emergency involved in those acts, assuming they were found 
guilty.
    Mr. Feeney. I'm going to let you follow up in writing on 
that because I've got a limited amount of time, and I, out of 
respect, wanted to let the Ranking Member ask his question.
    Now, Mr. Moschella--actually, Mr. Kerr, Mr. Dempsey does 
make some good points. If I'm, for example, typing stuff on my 
computer, perhaps over the Internet, then there is this 
theoretical question. Is it more like writing stuff in my own 
personal diary or is it more like speaking in the public 
square. The one example we had today was somebody attended a 
party and overheard conversations about some imminent threat to 
do violence.
    Isn't it appropriate at some point that if somebody's 
Internet communications have been, for example, appropriated by 
the FBI legitimately under 212 but they turn out to be a false 
alarm, aren't I entitled to find out at some point if I was the 
person that typed that language in, that the Government now has 
some of my personal thoughts, communications, et cetera, 
because, right now, there's no provision in 212 to notify 
anybody ever, is there?
    Mr. Kerr. Right now, there is no notice provision outside 
of--well, there are a couple of notice provisions. One would be 
in the wiretap context following a wiretap where the Government 
needs to inform the people----
    Mr. Feeney. I'm talking about the computer example.
    Mr. Kerr. That would apply. I believe it applies also in 
the Internet context----
    Mr. Feeney. Or stored.
    Mr. Kerr. For example, Government access to stored Internet 
communications pursuant to less process than a warrant does 
require prior notice. There are some notice requirements.
    To be honest, I think it's a difficult problem. The 
traditional fourth amendment model is very light on notice. 
There's not a lot of paperwork in traditional fourth amendment 
law. When the Government gets a warrant, of course, that's a 
separate story. Issuing a subpoena will provide notice to 
whoever receives the subpoena. The law hasn't traditionally 
done that, but maybe should do more in the electronic 
communications context.
    Mr. Feeney. My time has expired and I recognize the Ranking 
Member of the Subcommittee, Mr. Scott. I'm sorry, actually, the 
Congressman from Texas, Ms. Jackson Lee, you're recognized. A 
moment ago we didn't have anybody that hadn't asked on that 
side, so Congresswoman Jackson Lee, you're recognized.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    Let me be--the testimony of the witnesses, and thank you 
for your indulgence. There is a matter on the floor that I had 
to debate. But the witnesses' testimony, I am not going to 
probe specifically as to the comments of your testimony as much 
as I am going to probe the Achilles heels or the failings of 
section 212.
    Let me just, for framework, just enunciate that as I read 
it, section 212 allows a phone company or Internet service 
provider to give communication records and content to the 
authorities in emergency situations. The emergency situation 
does not have to be terror-related, and in fact, all of the 
examples that the Justice Department has related to us are 
dealing with ordinary crimes and kidnappings and bomb threats.
    It is imperative that we come together, as we did after 9/
11, to deal with the idea of homeland security. But the word 
``emergency'' and no definition disturbs me.
    The PATRIOT Act, for many of us, is an extension of powers, 
powers that this country already had. One of, I think, the more 
serious aspects of being safe is the collection of 
intelligence. That's where I think the most important focus is. 
These various provisions are allegedly to contribute to 
collecting intelligence. At the same time, there is no bar to 
use them for any myriad of reckless, random activities that may 
or may not provide for the security of this nation.
    We are a nation of laws. We need to enforce them. We need 
to protect our nation. But we're also a nation of civil 
liberties and balance.
    Mr. Dempsey, you said that there is a place for the PATRIOT 
Act, and I would agree with you. There is a place for the 
PATRIOT Act that this Committee worked through and passed out 
of Committee unanimously. Mr. Sensenbrenner, Mr. Conyers, and 
the entire body voted for the PATRIOT Act, from conservatives, 
if you will, to progressives, because we understand reality.
    I'm going to ask a question across the board. This broad 
term emergency, not defined, may be ultimately defined by court 
cases, seems to be overbroad and undefinable. Emergencies can 
be of any kind. Emergencies can be because I don't want to 
bother to go through the normal traditions of seeking a PC, 
getting a probable cause, and getting a warrant. Emergencies 
can be because I'm overworked. Emergencies can be because I'm 
understaffed. Emergencies can be because I don't like these 
guys. Emergencies can be because they practice a different 
religion from the general population. Emergencies can be 
because their neighbor next door is a problem. Undefinable and 
dangerous, from my perspective.
    So I'll start with Mr. Dempsey. Where do we narrow the 
focus, and am I highlighting the problem, and is 212 fixable?
    Mr. Dempsey. I think you're right on target and I think 
that 212, like every other provision of the PATRIOT Act, is 
fixable. But I've ended up at this hearing arguing with my good 
tutor, the Ranking Member of the Committee, because the Justice 
Department, and I've been defending the PATRIOT Act here, but 
they've been unwilling to come forward and talk about and 
engage on these checks and balances. They want the authority, 
and every one of these, in my view, has a legitimacy to it, but 
they don't want to engage on the issues that the Members of 
this Subcommittee and of the full Committee across the board in 
2001 and now again want to engage on. How do we build in 
accountability? How do we build in oversight? Tell us exactly 
how many times----
    Ms. Jackson Lee. And I'm going to allow him to do that 
because my time is short. You've raised a probative question. 
Mr. Moschella and Mr. Hulon and Mr. Kerr, let me just simply 
say, I want to give you the tools, but I come from a history 
where laws have been used against populations like the one I 
happen to belong in, one, an American, but also an African 
American, and we notice that the laws are used not from a 
terrorist perspective, but certainly adversely to our 
population in the '60's and the '50's and the early 1900's.
    Let me, Mr. Moschella, are you willing to look at the 
points, or the Justice Department, at the points of concern 
that are being raised, I guess by this Committee, maybe on both 
sides of the aisle, in terms of the looseness of 212 and the 
ability for this to be, if you will, a fishnet to see what we 
can haul in?
    Mr. Moschella. I'd like to make a couple of points. The 
first is to reiterate what the Attorney General said at the 
full Committee hearing. He said that he wanted to listen to 
criticisms and engage in that discussion, and if there were 
things that needed to be fixed, he is certainly open to doing 
that.
    With regard to your specific question about whether 
emergency is so broad, the statute specifically says that the 
emergency must involve the immediate danger of death or serious 
physical injury, so I would respectfully disagree that it is 
too broad.
    I'd also make this point, and I think Professor Kerr's 
written testimony is instructive. In his testimony, he talks 
about exigent circumstances and he views this emergency 
provision as, in a way, coextensive as the exigent 
circumstances doctrine in fourth amendment jurisprudence. 
Actually, this is much narrower because it only deals with 
danger to life and limb. He has a quote in his testimony from a 
Ninth Circuit case, which I won't read to you. I would just 
point that out, that this is even narrower than the exigent 
circumstances exception that we find in fourth amendment law.
    Ms. Jackson Lee. The question is the perception that is 
given to those definitions. There can be a myriad of 
perceptions by law enforcement officers attached to murder and 
threat, and there is no defined criteria to make those 
determinations.
    Mr. Hulon?
    Mr. Lungren. [Presiding.] The gentlelady's time has 
expired.
    Ms. Jackson Lee. I thank the gentleman. I had asked Mr. 
Kerr and Mr. Hulon. Is it possible to ask unanimous consent for 
them to answer the question, answer that question?
    Mr. Lungren. You can ask unanimous consent. Okay. So 
ordered.
    Ms. Jackson Lee. Thank you very much for your courtesies, 
Mr. Chairman and colleagues.
    Mr. Hulon. Thank you. In regards to your question about 
emergencies and the fact that the statute has not been used for 
terrorism, it has been. The example that I gave of the threat 
to burn down a mosque, I mean, that's considered terrorism just 
like the threat to the mosque in Detroit as well as the Imams. 
Those are strictly--those are emergencies where there is a 
threat to do bodily harm or to kill individuals that we would 
address under the terrorism program.
    So I would say that when we do that, we're looking at using 
this statute to respond where there is an immediate threat so 
that we can get there and respond to that crisis. And when 
you're talking about responding to a crisis, minutes add up. In 
the meantime, we can say, well, we have a statute or we have a 
provision that we can use. We would do that.
    And we do use that statute or that provision diligently and 
not abuse that, and the examples we gave were in regard to 
responses that had to do with life and death, just like the 
example I gave of Mrs. Stinnett. I mean, she was already dead 
and murdered, but her child was still alive and that child was 
recovered. That was not a terrorism case, but that was one that 
really merited us responding quickly. Thank you.
    Ms. Jackson Lee. Mr. Kerr?
    Mr. Kerr. I'll just respond briefly. The text of section 
212, I think, is quite narrow. The idea of an emergency 
involving only death or serious bodily injury is quite narrow. 
The exigent circumstances exception, in contrast, is extremely 
broad, some of the language used. Some consequence in properly 
frustrating legitimate law enforcement efforts can justify an 
exigent circumstances search. So that's quite broad and the 
statutory language here is actually much narrower by 
comparison.
    I think in terms--if the concern is that courts may 
construe that language more broadly, or worse, law enforcement 
may construe it more broadly, I think the answer is some sort 
of statutory suppression remedy that puts the issue before a 
court and allows a court to further define what that language 
actually means.
    Ms. Jackson Lee. Thank you. Mr. Chairman, I conclude by 
just saying that the Barnett-Bratisax case--basically, Mr. 
Hulon, they're being charged with free exercise of religion, or 
obstructing the free exercise of religion and they are waiting 
on trial, and so--and transmitting threatening communications 
in interstate commerce. I'd just simply say that judicial 
review would be warranted, I think, and I don't think--I've 
given PCs, and I haven't been on the Federal bench, but I've 
given probable cause warrants at 12 midnight as a judge in 
Houston, Texas. I know we can act quickly and I just don't see 
why we should not have that provision and use it usefully here.
    I yield back, Mr. Chairman. Thank you.
    Mr. Lungren. The gentlelady's time has expired.
    I'll take 5 minutes now. Mr. Moschella, I'm not concerned 
about the narrowness of the scope of this particular emergency 
provision. It seems to me you can't get much narrower than 
immediate and life or limb. But what I am concerned about is no 
judicial review whatsoever, as I understand it, under these--
I'll call them exigent circumstances.
    What would be the harm in requiring some review by a court 
after the fact as a means of assuring those who are concerned 
that this exceptional power, and it is an exceptional power, I 
think we have to recognize that. I mean, I think we have--I 
realize constitutionally we don't have the expectation of 
privacy, but most people, I think, have an expectation of 
privacy of their stored communications being held by a third 
party. In fact, most people don't really understand how it all 
works. They think it's in their machine.
    What would be the problem with requiring, and I don't know 
how we would define it, within a reasonable period of time or 
within a certain number of days or at the conclusion of the 
investigation, an application to the court at that time for the 
court to review it, and at that time, if it showed that there 
was information of a third party that somehow had come to the 
attention of the Government, that the court could make the 
determination as to whether that third party ought to be given 
notice that their information had been, quote-unquote, exposed 
to the eyes of the Government?
    Mr. Moschella. Well, in this circumstances, Mr. Chairman, 
I'm not sure which court one would go to. In the grand jury 
context in which a U.S. Attorney is subpoenaing similar sorts 
of records from a bank, for example, and these are the same--
the expectation of privacy is just about the same in the 
physical world as it is in the online world in these cases. 
We're not reporting back to the judge every time we get a 
return on a grand jury subpoena. Again, I don't----
    Mr. Lungren. No, but this is an extraordinary circumstance, 
as you recognized. We're giving an extraordinary grant of 
power, which I think is appropriate because we're talking about 
very few circumstances. If that's the case and there is the 
concern that arises from others that, as much as I appreciate 
law enforcement, we're not perfect. I had my disagreements with 
the FBI when I was Attorney General in terms of certain 
investigations and so forth, although I think we're all trying 
to do the right thing, but we make mistakes.
    Because we're talking about something that's very, very 
important, the concern that people have about Government 
getting too intrusive, too large, what's wrong with having some 
sort of mechanism by which at least we have the interposition 
of a third party that is a magistrate, a judge, to take a look 
at it after the fact to see if, in fact, it was appropriate, 
and also to make the judgment as to whether or not someone 
ought to be given notice that their information has been viewed 
by the Government, not that they would do it in all 
circumstances, but the judge would make that determination.
    Mr. Moschella. Well, we certainly would want to take a look 
at whatever proposal came up. I just want to make this point. 
The records that we're talking about, for example, basic 
subscriber information, there is little expectation of 
privacy--it's information that we obtain via subpoena in 
countless cases on a daily basis and I don't----
    Mr. Lungren. But this is not done pursuant to subpoena, 
correct?
    Mr. Moschella. No.
    Mr. Lungren. What we're talking about here is outside of 
subpoena.
    Mr. Moschella. Well, in the emergencies, that's correct.
    Mr. Lungren. That's all I'm talking about, emergency 
scenario here.
    Mr. Moschella. Well, but in the subpoena context under 
ECPA, we're not going to the judge. There are some categories 
of records under ECPA that a court order is necessary with 
differing standards, whether it's relevance or whether it's 
probable cause. But in the case of subscriber information, for 
example, a mere subpoena would suffice.
    Mr. Lungren. I don't think I heard an answer from you about 
whether or not the Administration would be opposed to 
considering the suggestion I made.
    Mr. Moschella. We certainly would consider it.
    Mr. Lungren. Mr. Dempsey, what do you think about that kind 
of an approach?
    Mr. Dempsey. I think you're right on track. That's very 
similar to the process that occurs in emergencies under title 
III and it does provide that sort of--you accommodate the 
emergency, you save the life, but it gives you that oversight, 
that judicial oversight, in cases where there was a mistake or 
where there was some overreaching, and that's all we're talking 
about here.
    Mr. Lungren. Thank you very much. My time has expired.
    Mr. Delahunt?
    Mr. Delahunt. Thank you, Mr. Chairman. You anticipated my 
own line of questioning.
    Mr. Lungren. I was just trying to shorten the gentleman's 
time.
    Mr. Delahunt. I appreciate that, but I'll try to fill it up 
anyhow. [Laughter.]
    I mean, the reality--let's be practical. I mean, the Frank 
amendment, I supported it. It was well intentioned. But for a 
citizen to sue the Government, it's extremely rare. It requires 
an extraordinary amount of resources that most people simply 
don't have. So, with all due respect.
    And we have a history in various investigatory agencies of 
conduct that is unacceptable. I mean, I was unaware that in a 
FISA application, was it an FBI agent that has been excluded 
from appearing before the FISA court again? Was that an 
accurate----
    Mr. Moschella. This is very, very old news. This is quite 
some time ago----
    Mr. Delahunt. No, I'm not suggesting--it's new news to me, 
and I'm not trying to get into it, but what I'm saying is it's 
evidence that, on occasion, there are problems, and that's what 
we are trying to speak to in terms of talking about the 
concepts of checks and balances, because we vest such 
incredible authority in those who are conferred the authority 
to invade other people's privacies under the color of law.
    So while these instances hopefully are rare, I believe it's 
our responsibility to ensure that there is as much 
accountability and transparency as possible without 
jeopardizing our national security. And again, I look to these 
provisions, and I think some of them, clearly, they have a 
certain legitimacy. But we're now at a different point. Now, we 
can go back and examine and think of what is necessary to 
secure the confidence of the American people in terms of what 
we did, and I think that's what you're hearing on this side up 
here.
    You know, I listened to both Mr. Dempsey and Professor 
Kerr. What's the problem with a statutory exclusion? Mr. 
Moschella?
    Mr. Moschella. You mean a statutory suppression remedy?
    Mr. Delahunt. Exactly.
    Mr. Moschella. Well, there certainly is for any 
constitutional violation----
    Mr. Delahunt. I'm not talking about a constitutional 
violation.
    Mr. Moschella. Right. I just want to point out that is 
available.
    Mr. Delahunt. I understand it. I'm talking about a 
statutory suppression provision.
    Mr. Moschella. Well, we certainly would be concerned if the 
Committee moved in that direction. There are any number of 
internal mechanisms that we use to address these problems, 
but----
    Mr. Delahunt. See, but that's----
    Mr. Moschella. Well, let me say----
    Mr. Delahunt. Okay.
    Mr. Moschella.--the statutory exclusion would defeat the 
truth-seeking nature of the criminal process and would only 
really benefit the criminal defendant.
    Mr. Delahunt. I have to say, there are some--you know, even 
in a constitutional fourth amendment exclusionary, I'm sure 
that what the Founders were considering is the balance of 
public safety and the balancing of constitutional rights and 
privacy, and I dare say the same analogy exists here. 
Hopefully, it would be very, very rare. But we don't--we've 
proven again and again and again, we don't have those internal 
mechanisms that operate all the time, that work to a degree 
that is satisfactory to the American people. That's what I'm 
talking about.
    Mr. Dempsey?
    Mr. Dempsey. Well----
    Mr. Delahunt. Before you go, Mr. Kerr, why don't you give 
us some language? Could you send me some language, statutory 
language that you think would satisfy the--that would meet the 
needs that you expressed in your testimony in terms of a 
statutory remedy?
    Mr. Kerr. I'd be happy to.
    Mr. Delahunt. Thank you.
    Mr. Dempsey. Well, let me say, Congressman, that you always 
hate to throw out evidence.
    Mr. Delahunt. Of course.
    Mr. Dempsey. And I think Congressman Lungren has been 
concerned about this issue for years and other Members have 
been, as well. I think on the fourth amendment side, we've 
reached an uneasy balance, but let's call it a balance, with 
the good faith exception. But as you were saying, Mr. Chairman, 
none of that applies in this strange stored e-mail space here 
and we're sort of the captives of some old fashioned thinking 
that, ``Oh, it's over there so there's no privacy in it.'' The 
average person thinks there is.
    What the Congress has tried to do is to create with the 
Electronic Communications Privacy Act that structure of privacy 
protection. And since 1986, the world has totally moved in the 
direction of e-mail, Internet, storage, things outside of your 
office, your home, your laptop, and that's what we're trying to 
do. We're trying to create similar rules for that environment. 
Right now, the way 212 works, none of those apply.
    Mr. Lungren. The time of the gentleman has expired.
    The gentleman, Mr. Flake, is recognized for 5 minutes.
    Mr. Flake. I thank the Chairman, and this won't take 5 
minutes, but with regard to what we do this year with regard to 
the sunsets, would the Department of Justice be adverse to 
having separate debates and votes on separate provisions that 
are being sunsetted, or--I mean, that would seem to be a better 
way to maybe have the right debate, because as has been pointed 
out here, all of us on the Judiciary Committee saw the reason 
for the PATRIOT Act and all of us voted for the version that 
came out of this. Some of us, including myself, voted for the 
version that passed on the floor, mostly because the sunset 
provisions were there and we knew that we could come and 
revisit it. But if I could get Mr. Moschella's thoughts on 
that.
    Mr. Moschella. Mr. Flake, as a former Parliamentarian of 
this Committee and now an executive branch official, I'm not 
going to tell this body, a separate branch of Government, 
exactly how it's going to manage its markup. I do want to make 
this point, though, that the President has called for the 
reauthorization of the PATRIOT Act and we believe that all 10 
provisions need to be reauthorized.
    Mr. Flake. But there have been--the Attorney General, when 
he testified before this Committee and before the Senate, 
conceded that there are some amendments that ought to be 
entertained, I guess is the way he put it, particularly with 
regard to the gag order and----
    Mr. Moschella. With regard to section 215, he stated that, 
number one, the Congress could write in the relevant standard 
which we believe to be implicit in the statute, the ability to 
confer with an attorney, and the ability to challenge a 215 
order in the FISA court.
    Mr. Flake. To Mr. Dempsey's point that he made before, it 
would help us--it would seem that the Department would enjoy 
more cooperation and have more credibility if there was a 
little more give and take here and a little more effort to say, 
all right, that may be more of a problem. Let's look at the 
ways we can have checks and balances. I see you nodding your 
head, Mr. Dempsey. Can you comment on that?
    Mr. Dempsey. I don't understand the either/or nature of 
this debate: you know, they all sunset or they all have to get 
renewed as is. We're talking here about the lack of an 
emergency exception in the Electronic Communications Privacy 
Act of 1986. That legislation went through months of hearings, 
markups, considerations, not under the kind of crisis situation 
we faced in October of 2001, and yet Congress forgot stuff. 
They left stuff out. They didn't put in an emergency exception. 
So, of course, come back and fix it.
    Now, in 2001, we didn't know if there was going to be 
another attack. We had the anthrax attacks. The Senate was shut 
down. We were worried about when the next attack would be and 
this legislation went through. Of course, mistakes were made. 
Of course, some of the checks and balances were left out. Now 
come back, keep the tools, keep the authorities, but put in the 
checks and balances.
    Mr. Flake. I'm still a newbie here. This is just my third 
term. But what I have come to understand with regard to this 
relationship is that the Department of Justice, as is their 
role, is to fight terrorism and to fight crime and they will 
take every tool that is given to them, as they should, 
apparently. But it's the Congress's role to make sure that 
there are appropriate checks and balances there and that's what 
these oversight hearings are all about and I commend this 
Committee for having thorough hearings on this matter and thank 
the witnesses for good testimony.
    Mr. Lungren. Mr. Dempsey, I would just suggest that your 
comment about 1986 where we didn't complete a perfect bill, I'm 
the only Member here who was here in '86----
    Mr. Dempsey. Yes, sir.
    Mr. Lungren.--but I will point out I was in the minority at 
the time. [Laughter.]
    Mr. Scott?
    Mr. Scott. Thank you, Mr. Chairman.
    If the information is not used in a criminal investigation, 
we may not know that it is ever gathered. Mr. Moschella, would 
you agree that we need a report to Congress so we can get an 
idea of how much this section is actually being used?
    Mr. Moschella. Mr. Scott, we would be happy to look at any 
reporting requirement. One thing I want to point out, though, 
in the context of the intelligence reform bill, Congress 
imposed, at my count, 106 new reporting requirements. We 
certainly want to make sure that they're meaningful, they're 
useful, that they are read, and that the same people who are 
putting the information together for these are also the same 
people fighting the war on terrorism and crime.
    Mr. Scott. Part of the problem is, we don't know how wide a 
net we're casting when we go to get the information. You may 
get specific information in a kidnap situation in an emergency, 
life and limb involved, but that's not--probably not all you're 
getting. What portion of the information that you get do you 
actually use in prosecutions?
    Mr. Moschella. I'm not able to answer that question.
    Mr. Scott. Once you get the information, what limitations 
are placed on how long it can be retained and who gets to see 
it?
    Mr. Hulon. I can respond to some of that, sir. The 
information that is obtained, I'd like to point out that 
primarily the information we're talking about obtaining is 
information in regards to the subscriber or the person who has 
that account, and what we're looking for, the FBI at that 
particular time, is the location of that person to try to 
resolve or prevent a crisis from occurring.
    The information that is obtained, of course, is put into 
the FBI files. It is not disseminated outside to the public. 
It's----
    Mr. Scott. It's not disseminated to the public, but last 
time we checked, this is--is this subject to that information 
sharing, where you can give it to the FBI and to local law 
enforcement and the Department of Defense and every public 
official that works in the neighborhood, some of whom may, in 
fact, be your neighbors, and some of this information may not 
be useful in a criminal investigation, but may be embarrassing?
    Mr. Hulon. Sir, the information would only be used for law 
enforcement or intelligence purposes. It would not just be 
provided to a public official. It would be within the 
intelligence channels as well as----
    Mr. Scott. Yes, but when you submit it to--when you give it 
to another agency, these are not robots and computers. These 
are human beings, some of whom may be your neighbors or my 
neighbors or the person whose information--and some of it could 
be politically embarrassing. I mean, you don't have to give it 
to so many people before somebody, you know, this might be some 
juicy stuff.
    Mr. Hulon. Sir, the information that we're talking about 
here would be the subscriber information to the person that has 
that Internet service, and when the information is 
disseminated, it's disseminated for law enforcement use only or 
for intelligence purposes, and we have requirements as far as 
how that information can be used and the people that receive 
that information understand those requirements, too. And so, 
therefore, that information is still within our channels. It's 
still protected. It's still guarded.
    Mr. Scott. Mr. Dempsey, during the commentary and a lot of 
the discussion and testimony, there was a difference between 
non-content information and content information. What's the 
difference statutorily and why should it make a difference?
    Mr. Dempsey. Well, we're really talking about two emergency 
exceptions here, one that relates to the content of e-mail 
storage, and, as we know, Google and Hotmail and others are now 
offering huge volumes of storage so that you store lots and 
lots--years worth of e-mail with the service provider. And then 
the second emergency provision relates to the subscriber 
identifying information, which we would call the transactional 
information.
    Sometimes, particularly in the Internet context, it's a 
little bit difficult to draw the line there. I think that the 
Justice Department's position should be that the ``re'' line on 
an e-mail, for example, is content, not transactional. The 
``to'' and ``from'' line is transactional information. Some of 
the other----
    Mr. Scott. But what about my credit card information and 
billing address? That could be some important information for 
law enforcement to get. I think----
    Mr. Dempsey. Those are considered transactional. That's on 
the non-content----
    Mr. Scott. That would be the best information. You get 
somebody communicating back and forth, you don't know where 
they are. You get the address, that's real good law enforcement 
information. Where is that in content and non-content, and what 
difference should it make in terms of what they can get?
    Mr. Dempsey. Credit card information falls on the non-
content side.
    Mr. Scott. And what difference does it make whether it's 
content or non-content?
    Mr. Dempsey. Well, in this case, it makes no difference. I 
mean, actually, there's some slight wording difference between 
the emergency exception for content information and the 
emergency exception for non-content information. One says 
immediate danger. Ironically, the standard now for non-content 
information is a little stricter than the standard for content 
information. Again, that's sort of the somewhat, I won't say 
sloppy, but that's a byproduct of the way in which these things 
are drafted.
    Mr. Lungren. The gentleman's time has expired.
    We've got a vote on. I know the gentlelady wants to ask a 
question to submit to you, if you could then give us the answer 
in written form.
    I just wanted to make one thing clear. I feel strongly that 
we should look at some judicial intervention. That does not 
mean I support a suppression statute here. As one who's worked 
for 25 years for a good faith exception to the exclusionary 
rule and realize that sometimes suppression punishes the victim 
rather than the constable who went wrong, I don't support that. 
But I think some sort of ability of a magistrate to intervene 
and also to make a judgment as to whether notice ought to be 
given.
    The gentlelady is recognized to ask her question.
    Ms. Jackson Lee. Let me just say, I want you to have the 
opportunity to enforce our laws. Judicial review for 212 has to 
be considered, and I believe it's imperative.
    This question is to just ask you to provide for us the 
steps that the Department of Justice has taken to ensure the 
more than 70 errors and misrepresentations regarding 
information sharing, unauthorized dissemination of information 
which are described in the Foreign Intelligence Surveillance 
Court's 2002 opinion order so that we know it will not be 
repeated.
    There are too many exceptions to 212. I want you to have 
the skills. I appreciate--and the tools. But really, I think 
there needs to be a balance. I thank you for your testimony.
    Mr. Lungren. I thank the gentlelady.
    I'd like to thank the witnesses for their testimony. The 
Subcommittee very much appreciates your contribution.
    In order to ensure a full record and adequate consideration 
for the important issue, the record will be left open for 
additional submissions for 7 days. Also, any written questions 
that a Member wants to submit should be submitted within the 
same 7-day period.
    This concludes the oversight hearing on ``The 
Implementation of the USA PATRIOT Act: Section 212--Emergency 
Disclosure of Electronic Communications to Protect Life and 
Limb.'' Thank you for your cooperation. The Subcommittee stands 
adjourned.
    [Whereupon, at 11:50 a.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Robert C. Scott, a Representative 
      in Congress from the State of Virginia, and Ranking Member, 
        Subcommittee on Crime, Terrorism, and Homeland Security

    Thank you, Mr. Chairman. And I want to again express my 
appreciation to you for devoting the time and attention you have to the 
issue of sunsetted provisions under the USA PATRIOT Act by holding the 
series of hearings you have held on the provisions, including this 
hearing on Section 212, which involves emergency disclosures under the 
Act.
    What the hearings have revealed to me is the extent to which we 
have authorized unchecked and indiscriminate secret access by the 
government to private, confidential, citizen communications and 
information. With section 212 and other provisions we have effectively 
changed provisions designed to protect private information from 
disclosure without due process, to provisions designed to allow or 
require indiscriminately disclosure of information to the government. 
And such disclosures can be made with virtually no detached oversight 
or any other checks and balances such as requiring notice before or 
after the fact, requiring reporting to either a court, the Congress or 
the public, or requiring sanctions or remedies for wrongful acts or 
abuses.
    Moreover, with the liberal information sharing provisions we have 
authorized, this secretly acquired private, confidential information 
can be spread all over town without the person to whom the information 
pertains ever knowing anything about it. Further still, there are 
absolutely no restrictions on how long, or by whom, the information can 
be maintained.
    I expect that we will again here from the Department of Justice and 
others how important it is for the government to have secret, virtually 
unfettered access to our private, confidential information in order to 
protect us from terrorism or eminent threats to our health safety. 
However, we are not likely to hear how many times the authorities have 
been used where no terrorism or eminent threat was involved or how many 
times no criminal proceedings or other actions ensued to show the 
intrusions were warranted. We are left to simply trust government 
officials to always do the right thing at the right time in the right 
way, with complete impunity, and without the bother of a court, the 
Congress, or the public, looking over their shoulder while they are 
doing it.
    Mr. Chairman, we should use the information we have gleaned on the 
extraordinary secret powers we have authorized, to put in ordinary 
checks and balances such as notice, court oversight, reporting 
requirements and sanctions and remedies. To fail to do so would turn on 
its head not only the Electronic Communications Privacy Act (ECPA), and 
intent of the Forth Amendment to the Constitution, but the healthy 
mistrust of government the Framers of our system intended, as well.
    So, Mr. Chairman, I look forward to the testimony of our witnesses 
on how these extraordinary powers are being used and how we can best 
provide for the necessary checks and balances our system calls for, and 
to working with you to implement them. Thank you.

                               __________
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
                 in Congress from the State of Michigan

    Today we're here to discuss one of the many criminal provisions in 
the PATRIOT Act that has nothing to do with terrorism. As these 
hearings have highlighted, some in our government used the tragedy of 
9/11 and the fear of terrorists in the immediate aftermath to ram 
through new powers to investigate every day crimes.
    First, I am concerned that this provision, sold to this Congress as 
a way to protect our critical infrastructure from terrorists, has been 
a boon to cops seeking information on every day crimes. Truly, 
sidestepping the court system completely can only be done in the 
gravest of circumstances--and this section of the PATRIOT Act is not 
limited even to cases where danger is immediate. It goes to far and in 
too many cases, especially in cases that have absolutely nothing to do 
with terrorism.
    Second, there are no safeguards to ensure that those who scare 
internet and phone companies into turning over their customer's 
information are doing so only when spending that extra hour to get a 
warrant is truly impossible. There are not even safeguards after the 
fact, and plainly, there is no justification for avoiding judicial 
review or notice to the target after the so called emergency is over. 
Indeed, we afford that courtesy to suspected terrorists under the 
Foreign Intelligence Surveillance Act after an emergency order is not 
extended by the FISA court. I would hope that we would extend the same 
rights to American citizens suspected of far less serious crimes.
    Third, the Justice Department has yet to come forward to explain 
how this section has helped prevent terror attacks or saved a single 
life or limb from terrorists. We will hear anecdotes today about 
everyday kidnappings and computer hackers--but anecdotes are not 
oversight. I hope to hear whether Section 212 has truly been used to 
combat terrorism, or merely rode into law on terrorism's coattails.
    Finally, hearing after hearing, we are told that these changes to 
Title 18, our criminal code, are necessary to prosecute terrorists. 
Yet, the list of actual convictions is horribly small. We've rewritten 
our criminal laws and compromised the 4 th Amendment all for the sake 
of putting terrorists behind bars--because that is the sole purpose of 
our criminal code--and it has been a failure. As we go forward and 
discuss all the criminal provisions in the PATRIOT Act, we must decide 
whether a handful of guilty pleas are worth compromising the rights of 
the entire citizenry.

                                 
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