Let the Sun Set on PATRIOT - Section 220:

"Nationwide Service of Search Warrants for Electronic Evidence"

How Section 220 Changed the Law

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

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

Why Section 220 Should Sunset

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

• Section 220 allows the FBI to pick and choose which courts it can ask for a search warrant. This means it can "shop" for judges that have demonstrated a strong bias toward law enforcement with regard to search warrants, using only those judges least likely to say no -- even if the warrant doesn't satisfy the strict requirements of the Fourth Amendment to the Constitution.
• By allowing courts to issue warrants to be served on communications providers in far-away states, Section 220 reduces the likelihood that your ISP or phone company will try to protect your privacy by challenging the warrant in court, even if the warrant is clearly unconstitutional. A small San Francisco ISP served with such a warrant is unlikely to have the resources to appear before the New York court that issued it. Yet because you won't be notified if the FBI uses a warrant to get your electronic communications, your ISP is the only entity in a position to fight for your rights.

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

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

Conclusion

Section 220 threatens your Fourth Amendment right against unreasonable searches and seizures. EFF strongly opposes its renewal, and we urge you to oppose it, too. We also support the Security and Freedom Ensured Act (SAFE Act, S 1709/HR 3352) and encourage you to visit EFF's Action Center today to let your representatives know you support the bill.