In my continuing rant regarding the USA Patriot Act, here is part 4 of the EFF
analysis of various sections. Excerpted from:

EFFector    Vol. 17, No. 8    March 10, 2004          donna@eff.org

A Publication of the Electronic Frontier Foundation  ISSN 1062-9424 In the
280th Issue of EFFector:

* Let the Sun Set on PATRIOT - Section 209: "Seizure of  Voice Mail Messages
Pursuant to Warrants"

Welcome to part four of "Let the Sun Set on PATRIOT," an EFFector  series on
the battle to let some of the most troubling provisions  in the USA PATRIOT
Act expire, or "sunset."  Each week, we profile  one of the 13 provisions set
to expire in December of 2005 and  explain in plain language what's wrong with
the provision and  why Congress should allow it to sunset.  This week we look
at  Section 209,  which violates your privacy by making it easier  for the FBI
to listen to your  voice mail messages.

Before PATRIOT, the privacy of your voice mail was protected  by the Wiretap
Act.  This meant that in order to listen to  your messages, the FBI had to
secure a wiretap order.  These  orders are like "super" warrants - they have
even stricter  Constitutional requirements than do warrants for physical 
searches.

After PATRIOT, however, your voice mail is governed by the  Electronic
Communications Privacy Act (ECPA), a statute that  gives you much less legal
protection against government spying.  Now, instead of needing a wiretap order
to listen to your  voice mail, the FBI can use other legal processes with
weaker  privacy-protection standards:   

* If you haven't listened to your voice mail messages and they  are 180 days
old or less, the FBI can use a search warrant to gain access to them. * If you
have listened to your messages, or if they are older  than 180 days, the FBI
can use a special court order for  stored communications, or a subpoena. * In
some cases, the FBI may be able to simply ask for the  voice mail, and your
phone company may give it, without  fulfilling any legal requirements at all.

As a result, the privacy of your voice mail is substantially reduced:

* Before PATRIOT, the FBI could gain access to your voice mail  only by
showing facts to a judge that demonstrate "probable  cause" to believe that
you are committing a crime.  Now, under  certain circumstances, it need only
demonstrate "reasonable  grounds" for the search to get a court order - or, if
it uses  a subpoena, mere "relevance" to an investigation. 

* Before PATRIOT, the FBI eventually had to notify you if it  listened to your
voice mail messages.  Now if they use a search  warrant, the only way you'll
find out is if the FBI uses your  voice mail against you in court.

* Before PATRIOT, the FBI could listen to your voice mail only  if you were
suspected of one of a limited number of serious  crimes.  Now it can gain
access to your voice mail messages  for any kind of criminal investigation
whatsoever.

* Before PATRIOT, if the FBI listened to your voice mail  illegally, it
couldn't use the messages as evidence against  you - this is the so-called
exclusionary rule.  But the ECPA  has no such rule, so even if the FBI gains
access to your  voice mail in violation of the statute, it can freely use  it
as evidence against you.

Section 209 is a perfect example of the opportunism shown by  the Department
of Justice in the wake of the 9/11 terrorist  attacks.  Knowing that a bill
tagged as "anti-terrorist"  couldn't fail to pass, the DOJ loaded PATRIOT with
its entire  wish list of new powers, regardless of whether these powers 
specifically targeted terrorism.  Section 209 is one such power -  expanding
the FBI's ability to search your communications in  any criminal
investigation, terrorism-related or not.  Yet  the DOJ never indicated that
the previous law significantly  hindered its investigations, much less put
stumbling blocks  in the fight against terrorism.

Passed by Congress in a climate of fear, Section 209 effects  a dangerous and
unnecessary reduction in citizens' privacy.   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: <http://action.eff.org/action/index.asp?step=2&item=2866>

We'll look at Section 220, which allows the FBI to get search  warrants for
electronic evidence that can be served in any  jurisidiction in the country.