Statement on Durbin-Lee Roving Wiretap Amendment to the PATRIOT Act
Senate Judiciary Committee Markup
The Durbin-Lee amendment is simple, but important. It would require the government to describe the target of a roving wiretap “with particularity.”
The amendment would add just two words to the FISA roving wiretap statute – but these words would ensure that roving wiretaps are conducted in compliance with the 4th Amendment of the Constitution.
And it’s my understanding that our amendment would simply codify the Justice Department’s current practice and interpretation of the law. So, it would not have any adverse operational effects.
Let’s take a step back. Normally, when the government seeks a warrant authorizing a wiretap, its application must specify both the individual and the place that will be under surveillance.
Roving wiretaps, which do not require the government to specify the place to be bugged, are designed to allow law enforcement to track targets who evade surveillance by frequently changing phones. Before the PATRIOT Act, roving wiretaps were only permitted for criminal investigations. The PATRIOT Act authorized the FBI to use roving wiretaps under FISA for the first time.
It is important for roving wiretaps to be available in intelligence investigations. Unfortunately, the PATRIOT Act did not include sufficient checks to protect innocent Americans from unwarranted government surveillance. Under current law, the FBI is not required to ascertain the presence of the target of the wiretap at the place being wiretapped, as it is for criminal wiretaps.
The Intelligence Authorization Act of 2002 made another dramatic change in the law. The FBI is now permitted to obtain a “John Doe” roving wiretap under FISA, an authority that doesn’t exist in any other context. A “John Doe” roving wiretap does not specify the target of the wiretap or the place to be wiretapped. In other words, the FBI can obtain a wiretap without saying whom they want to wiretap or where they want to wiretap.
Some defend this authority by saying that even if the target of the wiretap is not identified, a description of the target is required. But the law does not require the description to include any particular level of detail. This does not adequately protect innocent Americans from unwarranted government surveillance.
And this is the problem the Durbin-Lee amendment would fix.
The Durbin-Lee amendment would retain the PATRIOT Act’s authorization of FISA roving wiretaps. Our amendment would simply require that if the target of the surveillance is not identified, at least he should be described with particularity.
Just yesterday, the Justice Department and the Office of the Director of National Intelligence, testified about FISA roving wiretaps in the House Judiciary Committee. They said that particularity for roving wiretaps is already required, using language that is identical to the Durbin-Lee amendment.
Todd Hinnen, the Acting Assistant Attorney General of the National Security Division said: “Even where we do not know the target’s name, we must provide the court sufficient detail to identify him with particularity.”
Bob Litt, the General Counsel of the Office of the DNI, testified: “While the government may not always have the name of the person to be targeted, we must always be able to provide the FISA Court sufficient detail to identify the person with particularity.”
So the Durbin-Lee amendment simply codifies the Administration’s existing practice and interpretation of the law.
This is a modest, common-sense amendment which would give the government the authority they need to combat terrorism while ensuring that the 4th Amendment rights of innocent Americans are protected.
I ask for my colleagues to support the Durbin-Lee amendment.
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