The USA PATRIOT Act's impact on newsgathering is still largely theoretical nearly four years after Congress rushed to enact the law. No newsrooms are known to have been searched and apparently no documents have been taken from reporters under the law -- although those subject to such a search and seizure would be prohibited from talking about it.

Nevertheless, journalists should be concerned about certain provisions of the law, which grant broad new powers to government agents to investigate terrorism and make previous statutory protections for newsrooms almost irrelevant when it comes to terrorism investigations.

Congress enacted the law with little debate just six weeks after the terrorist attacks on the World Trade Center and the Pentagon. President Bush signed the USA PATRIOT Act into law on Oct. 26, 2001.

The awkwardly named law -- the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 -- expands the FBI's ability to obtain records through secret court orders. The law also gives government investigators greater authority to track e-mail and telephone communications and to eavesdrop on those conversations.

Although aimed at trapping terrorists, those provisions of the law could ensnare journalists and compromise their ability to report on the war on terrorism. Journalists should be aware of this law and future amendments and proposals that attempt to expand government surveillance powers and increase secrecy surrounding the government's efforts to combat terrorism.

Some of the most controversial parts of the law, including the sections of most concern to journalists, are set to expire at the end of 2005. With critics calling for those sections to be allowed to expire and the Bush administration asking for them to be made permanent, bills have been working through both houses of Congress that will make most of the provisions permanent and extend two others for another five years.

Secret court orders

The USA PATRIOT Act amended certain provisions of the Foreign Intelligence Surveillance Act (FISA), thereby expanding the government's ability to conduct surveillance of foreign powers and agents of foreign powers in the United States.

Enacted in 1978, FISA set forth procedures governing foreign intelligence investigations and established a secret court that approves or denies the use of electronic surveillance by the government for foreign intelligence purposes.

The Foreign Intelligence Surveillance Court's 11 judges, who come from different federal circuits, meet twice a month in Washington, D.C., with three judges always available in Washington. The PATRIOT Act increased the number of FISA judges to 11 from the previous seven. If the court denies an application for surveillance, the government may appeal to the Foreign Intelligence Surveillance Court of Review, a panel of three federal judges appointed by Chief Justice William Rehnquist.

Secrecy permeates the process of obtaining the court order. The FISA court that issues the surveillance order meets and decides its cases in secret. As a result, the public is left in the dark about the number of FISA search warrants issued against U.S. citizens, who are never informed of the surveillance and are not represented before the court. Not only is the public uninformed, but Congress is kept in the dark about how the FISA court interprets provisions of the PATRIOT Act drafted by Congress. The FISA court is not required to reveal its legal opinions, thereby establishing a secret body of case law unprecedented in American jurisprudence.

The court's secrecy remained intact from its inception in 1979 until three years ago, when a conflict between the court and the Justice Department was revealed to the Senate Judiciary Committee in August 2002.

The conflict centered around interpretation of amendments made by the PATRIOT Act to FISA. Prior to the PATRIOT Act, FISA surveillance orders were limited to investigations where the primary purpose was gathering foreign intelligence information. FISA provisions required strict limits on such power-sharing between criminal prosecutors and foreign intelligence investigators because foreign intelligence investigations are not required to follow the same strict constitutional safeguards as criminal prosecutions. For example, a FISA surveillance order only requires probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power; whereas, under the Fourth Amendment, a criminal search warrant requires probable cause of criminal activity.

In its May 2002 opinion, revealed to the Senate Judiciary Committee in August 2002, the FISA court rejected the Justice Department's argument that the PATRIOT Act enables the government to obtain a surveillance order where the primary purpose is a criminal investigation. The court scaled back the information-sharing regulations, still allowing prosecutors to consult with intelligence investigators on how to "preserve the option of a criminal prosecution" and to benefit from information obtained during a FISA investigation, but not allowing them to steer those investigations to further prosecutions. As a result, the Justice Department could not apply PATRIOT Act provisions to FISA in such a way as to allow criminal prosecutors to actually control or direct foreign intelligence investigations.

The government appealed the court's decision. In September 2002, the Court of Review met for the first time in its history, reversing the FISA court's decision and ruling in favor of the government. It found that the PATRIOT Act enables the government to obtain a surveillance order from the FISA court where the primary purpose is a criminal investigation as long as gathering foreign intelligence information is also "a significant purpose" of the investigation. If "the government entertains a realistic option of dealing with the [foreign] agent other than through criminal prosecution, it satisfies the significant purpose test," the Court of Review wrote in its opinion.

The Court of Review noted that FISA surveillance orders could not be authorized against journalists who were not agents of foreign powers or, as the House of Representatives explained in its report when it enacted FISA, "against an American reporter merely because he gathers information for publication in a newspaper, even if the information was classified by the Government. Nor would it be authorized against a Government employee or former employee who reveals secrets to a reporter or in a book for the purpose of informing the American people."

In February 2003, the American Civil Liberties Union and a number of other civil liberties organizations asked the U.S. Supreme Court to review the decision. The ACLU group, which had filed a friend-of-the-court brief before the Court of Review, asked the Supreme Court to allow it to file the petition because no other party is involved in the case and able to contest the government's surveillance request or the FISA order.

"Traditionally, the warrant and probable cause requirements have served as important safeguards of First Amendment interests by preventing the government from intruding into an individual's protected sphere merely because of that individual's exercise of First Amendment rights," the ACLU wrote in its petition.

Expanding the government's surveillance powers under the PATRIOT Act will "chill" speech protected by the First Amendment, the ACLU argued. Such a chilling effect could possibly restrict sources from speaking to reporters.

On March 24, 2003 the Supreme Court denied the ACLU's motion to intervene, allowing the Court of Review's decision to stand. (In re Sealed Case)

In April 2004, The Associated Press reported that the number of secret surveillance warrants requested by the FBI and approved under FISA had increased 85 percent in three years, from 934 in 2001 to 1,724 in 2003. One year later, AP reported that 1,754 warrants were approved in 2004. In 2000 there were 1,003 warrants approved. Pursuant to a Freedom of Information Act request, AP was able to report in January 2005 that the FBI conducted eight Internet wiretaps in 2003 and five in 2002.

How do FISA and the USA PATRIOT Act affect journalists?

Under Section 215 of the PATRIOT Act, the FBI can seek an order requiring the production of "any tangible thing" -- which the law says includes books, records, papers, documents and other items -- from anyone for investigations involving foreign intelligence or international terrorism. The person or business receiving the order cannot tell anyone that the FBI sought or obtained the "tangible things."

For journalists, the big question is whether the provision for secret court orders will allow a newsroom search for "any tangible thing" related to a terrorism investigation. Could a government agent use the law to gain access to a reporter's notes and confidential sources?

The short answer is that the PATRIOT Act does allow the search of newsrooms in connection with terrorism investigations. Another federal law, the Privacy Protection Act of 1980, spells out when newsroom searches are forbidden and the limited exceptions in which they are allowed. However, it only applies to criminal investigations, and the FBI has made it clear that the PATRIOT Act's application to any "investigation to protect against international terrorism or clandestine intelligence activities" does not subject it to the limits of criminal investigations.

The Privacy Protection Act states that, "notwithstanding any other law," federal and state officers and employees are prohibited from searching or seizing a journalist's "work product" or "documentary materials" in the journalist's possession, as part of a criminal investigation. A journalist's work product includes notes and drafts of news stories. Documentary materials include videotapes, audiotapes and computer disks.

Some limited exceptions under the Privacy Protection Act allow the government to search for or seize certain types of national security information, child pornography, evidence that a journalist has committed a crime, or documentary materials that must be immediately seized to prevent death or serious bodily injury.

Documentary materials also may be seized under the Privacy Protection Act if there is reason to believe that they would be destroyed in the time it took government officers to seek a subpoena. Those materials also can be seized if a court has ordered disclosure, the news organization has refused and all other remedies have been exhausted.

The Privacy Protection Act gives journalists the right to sue the United States or a state government, or federal and state employees, for damages for violating the law. The law also allows journalists to recover attorney's fees and court costs.

While Congress was drafting the PATRIOT Act, the American Library Association objected to the potential intrusion into library patrons' personal information, including reading habits and the Web sites they viewed. The group described the law as a threat to patrons' privacy and First Amendment rights. In response, the library association posted guidelines on its Web page advising libraries to avoid creating and retaining unnecessary records.

On Jan. 29, 2003, the library association passed a formal resolution objecting to certain provisions of the PATRIOT Act and warned that "the activities of library users, including their use of computers to browse the Web or access e-mail, may be under government surveillance without their knowledge or consent." Likewise, on Feb. 10, 2003, the American Bar Association adopted a formal resolution that calls for congressional oversight of FISA investigations to ensure that the government is complying with the constitution and limiting improper government intrusion.

Confusion over use and implementation

It remains unclear whether or how often provisions of the PATRIOT Act have been used to obtain records, although libraries started reporting visits from FBI agents early on. The Associated Press reported in 2002 that of the 1,020 public libraries surveyed by the Library Research Center at the University of Illinois, 85 said they had been asked by federal or local law enforcement officers for information about patrons related to September 11. In June 2005, the American Library Association released the results of a survey that revealed that state and federal officials had asked librarians for information about their patrons 268 times since 2001, although it is unknown how many of these requests were made under provisions of the PATRIOT Act.

In September 2003, the Justice Department reported that it had never actually used Section 215, according to a confidential memo from Attorney General John D. Ashcroft obtained by the Washington Post and The Associated Press. Ashcroft said in the memo to FBI Director Robert S. Mueller III that he had decided to declassify that previously secret information because of his "concern that the public not be misled about the manner in which the U.S. Department of Justice, and the FBI in particular, have been utilizing the authorities provided in the USA Patriot Act."

However, in June 2004, The Washington Post reported that government documents disclosed to the ACLU under court order show that the FBI asked the Justice Department the previous fall to seek permission from a secret federal court to use Section 215, four weeks after Ashcroft said that part of the law had never been used. The memo did not indicate the nature of the search, whether the Justice Department ever asked the FISA court to approve the search or whether the court granted the request. The records do not indicate how many times the FBI has invoked Section 215 since October 2003.

The confusion over use of Section 215 can largely be blamed on the department's lack of cooperation with Congress, which prompted complaints of interference with congressional oversight.

The House Judiciary Committee, which oversees how the Justice Department enforces the PATRIOT Act, asked the Justice Department for a detailed accounting after the 2002 library survey was announced. On June 13, 2002, committee chairman Rep. F. James Sensenbrenner Jr. (R-Wis.) and ranking member Rep. John Conyers Jr. (D-Mich.) sent a list of 50 detailed questions to Attorney General John Ashcroft.

Question 12 asked: "Has the law been used to obtain records from a public library, bookstore or newspaper? If so, how many times?"

In a written response on July 26, 2002, Assistant Attorney General Daniel J. Bryant conceded that newspapers were not exempt from the secret court orders.

"Such an order could conceivably be served on a public library, bookstore, or newspaper, although it is unlikely that such entities maintain those types of records," Bryant wrote.

He declined to state the number of times the government has requested an order or the number of times the FISA court has granted an order. That information is classified, his letter said.

Senator Patrick Leahy (D-Vt.) again sought answers to this question and others after an oversight hearing in July 2002. Of the 93 questions posed by Leahy, 37 remain unanswered.

This type of stonewalling and secrecy was cited in a February 2003 interim report by Senators Leahy, Charles Grassley (R-Iowa), and Arlen Specter (R-Penn.) as "mak[ing] exercise of our oversight responsibilities difficult."

In addition, the interim report found that the refusal of the Department of Justice to disclose the legal opinions and operating rules of the FISA court "contributed to the deficiencies that have hamstrung the implementation of the FISA." Even though members of the Senate Judiciary Committee authored provisions in the PATRIOT Act, they were unaware of how the Department of Justice was interpreting these provisions before the FISA court.

In a bid to shore up support for the Act, the Justice Department unveiled extensive new details of its use of the Act on July 13, 2004, asserting that it has helped thwart al Qaeda plots and led to scores of criminal convictions since the Sept. 11, 2001, attacks, The Washington Post reported. According to a 29-page report to Congress released by Attorney General John D. Ashcroft, Justice Department terrorism investigations have resulted in charges against 310 people and have yielded 179 convictions or guilty pleas -- although not necessary on terrorism-related charges. The report says the expanded law enforcement powers of the PATRIOT Act were central to those cases.

In December 2004, Congress created the Privacy and Civil Liberties Oversight Board in response to a recommendation by the Sept. 11 Commission. President Bush delayed appointments to the five-member board for six months, and as of August 2005 the board had still not met for the first time.

Post-PATRIOT amendments

In response to this secrecy, Senators Leahy, Grassley and Specter joined together in February 2003 to introduce the Domestic Surveillance Oversight Act of 2003 (S. 436). The bill would have required that the rules and procedures of the FISA courts be shared with the U.S. Supreme Court and the Intelligence and Judiciary committees of the Senate and House. In addition, the attorney general would have been required to submit an annual public report detailing portions of the applications and opinions of the FISA courts that contain significant legal interpretations of FISA or the constitution. "This type of disclosure . . . will prevent secret case law from developing which interprets both FISA and the Constitution in ways unknown to Congress and the public," said Senator Leahy in a Feb. 25 statement made upon introduction of the bill.

The bill also would have required annual reporting on the aggregate number of FISA wiretaps and surveillance orders against Americans and requests for information from libraries.

According to Leahy: "This bill does not in any way diminish the government's powers, but it does allow Congress and the public to monitor their use. We cannot fight terrorism effectively or safely with the lights turned out and with little or no accountability. It is time to harness the power of the sun to enable us to better win this fight."

On October 1, 2003, Senators Leahy, Craig, Durbin, Sununu and Reed introduced the PATRIOT Oversight Restoration Act of 2003 (S. 1695), which would expand the PATRIOT Act sunset provision. The bill would add 12 more sections of the Act to the current sunset provision, which lets portions of the Act expire on December 31, 2005. Sen. Leahy explained: "It will allow Congress to re-examine some of the important legal issues that abruptly confronted us in the weeks following September 11, and to re-assess our efforts with the benefit of hindsight and the luxury of time."

The next day, Senator Craig and others introduced a bipartisan bill, the Safety and Freedom Assured (SAFE) Act, which would have limited roving wiretaps under the PATRIOT Act, curtail delayed notification of searches, and increase privacy protections for library users and others. (S. 1709)

All three bills were referred to the Judiciary Committee, but no further action was taken before the end of the 2003-2004 session.

However, on December 13, 2003, President Bush signed into law broad new law enforcement powers as a part of the second installment of the PATRIOT Act. The original PATRIOT Act provisions allow the FBI to probe individuals' records at "financial institutions" by presenting a "national security letter," and it gags the institutions from revealing that happened. The newly signed law redefines "financial institution" to include not only banks but stockbrokers, casinos, airlines and any other institution "whose cash transactions have a high degree of usefulness in criminal, tax, or regulatory matters" even if federal officials don't suspect any involvement in crime or terrorism. The old PATRIOT Act provision checked the issuance of the letters by requiring that they be reported to Congress. The new PATRIOT provisions eliminate that requirement. In the Spring of 2004, Bush began to call on Congress to pass a permanent version of the Act.

The December 2003 expansion of PATRIOT Act powers caught many by surprise, mainly because of the way the provisions went through Congress. It all started in February 2003, when the Center for Public Integrity revealed that the Department of Justice was considering a new comprehensive legislative proposal, the Domestic Security Enhancement Act of 2003, dubbed "PATRIOT II," that would provide the government with even greater intelligence-gathering powers and limit public access to information. Provisions included the expansion of the "financial institution" definition, an expansion of the definition of terrorism to possibly include political protesters, a prohibition on disclosure of information on detainees being held and investigated by the government on suspected terrorism activity, and prohibitions on disclosure of "worst case scenario" reports submitted to the Environmental Protection Agency by private companies that use potentially dangerous chemicals.

Civil liberties groups and First Amendment advocates expressed their concern and outrage over the Justice Department's expansion of the PATRIOT Act, and attempts to pursue the act as a whole soon died. But key provisions were inserted -- with no debate, and on a voice vote -- as amendments in the Intelligence Authorization Act for Fiscal Year 2004, which Bush signed in December.

Another effort to curb government powers granted under the Act was narrowly defeated by one vote on July 9, 2004 in the U.S. House of Representatives. The measure would have prevented the government from accessing library and bookseller records -- including library patron reading lists and book customer lists. Although the measure seemed to have enough support the day before the vote, the Washington Post reported that House Republicans, under intense pressure from the White House and the threat of a Presidential veto, prolonged the vote "for 23 tumultuous minutes while they corralled dissident members."

A number of bills were introduced in the current Congress to deal with the expiring portions of the PATRIOT Act. One bill before both houses of Congress, the USA PATRIOT Improvement and Reauthorization Act of 2005 (S. 1389, H.R. 3199), introduced by Sen. Arlen Spector (R-Penn.) and Rep. James Sensenbrenner (R-Wis.), would make 14 of the 16 expiring provisions permanent, but place a five-year sunset on provisions that allow roving wiretaps and searches of library and business records. The bill passed both houses in July 2005, but differences between the House and Senate versions are still being reconciled.

On June 16, 2005, Sen. Pat Roberts (R-Kan.) introduced a bill to reauthorize a provision of the Intelligence Reform and Terrorism Prevention Act of 2004 and to "provide additional investigative tools necessary to protect the national security." (S. 1266) In addition to making expiring portions of the PATRIOT Act permanent, the bill would permit the FBI to secretly issue administrative subpoenas for business records without court oversight. The bill was approved by the Senate Intelligence Committee on June 16, 2005.

Challenging the PATRIOT Act

The American Civil Liberties Union filed suit challenging the constitutionality of Section 215 in July 2003, arguing among other things that the law violates the First Amendment by allowing the government to easily obtain information about reading habits and expressive activities that will be "chilled" by the threat of a federal investigation, and by imposing a gag order on the third party, such as a library, newspaper or broadcaster, whose records have been taken under such an order. Two years after the suit was filed, U.S. District Judge Denise Page Hood of Detroit has yet to rule. (Muslim Community Center of Ann Arbor v. Ashcroft)

In another legal challenge to the PATRIOT Act, the American Civil Liberties Union (ACLU) filed a lawsuit challenging the Act's provisions in the U.S. District Court in New York in April 2004. The lawsuit challenged the FBI's use of national security letters to obtain business records from Internet service providers. Provisions in the PATRIOT Act required that the case itself be kept under seal, until the ACLU worked with the Justice Department to reach an agreement that allowed the group to release a heavily redacted version of the complaint. According to the Washington Post, Ann Beeson of the ACLU said, "It is remarkable that a gag provision in the PATRIOT Act kept the public in the dark about the mere fact that a constitutional challenge had been filed in court." The complaint alleged that the National Security Letters (NSLs), which pursuant to the PATRIOT Act allow the FBI to request financial records and other documents from businesses without judicial approval, are unconstitutional.

In May 2004, the Washington Post reported that the ACLU was forced to remove two paragraphs from a press release about the organization's lawsuit challenging provisions of the PATRIOT Act, after the government complained that the ACLU had violated a sealing order in the case. U.S. District Judge Victor Marrero, of New York, ordered the group to delete two seemingly innocuous paragraphs -- one laying out the briefing schedule in the case, the other describing in general terms the statutory provision being challenged. In an April 30 letter opposing the ACLU's attempts to unseal the case, an assistant U.S. Attorney in New York, Meredith Kotler, made the remarkable assertion that "the ACLU essentially seeks a presumption that all information in this case shall be publicly available. [REDACTED] it is critical that the opposite presumption prevail . . . ."

Later that month, the ACLU made public its brief and supporting documents. Among the documents was a heavily censored declaration that confirms, for the first time, the existence of the ACLU's anonymous client in the case.

On September 28, 2004, Judge Victor Marrero ruled that the FBI's use of national security letters was unconstitutional. Because the FBI could issue the letters without judicial supervision or review, their use violated the Fourth Amendment's prohibitions on unreasonable searches and seizures and unconstitutionally chilled Internet subscribers' First Amendment right to anonymous speech. Marrero also ruled that the non-disclosure provision was an unconstitutional prior restraint and content-based speech regulation in violation of the First Amendment. He enjoined the FBI from using the national security letters, but stayed the order pending appeal.

Electronic surveillance

As long as a reporter is not an "agent of a foreign power," the PATRIOT Act does not make it easier for the government to wiretap a reporter's phone. As was the case before the law passed, investigators still must have probable cause to believe a person has committed a crime before they can bug that person's phone.

However, it is now easier for investigators to eavesdrop on a terrorism suspect's telephone calls and e-mail communications with so-called "roving" wiretaps. Because of that change, reporters may run a heightened risk of having their telephone or e-mail conversations with sources intercepted by government agents if those sources are deemed "agents of a foreign power."

Though these legislative initiatives do not directly address journalists, any rollback in protection of private communications can affect reporters' relations with sources. Furthermore, these actions provide insight on where the future of antiterrorism law may lead -- a road that may pose grave danger to the First Amendment rights of the press.

Journalists should become familiar with the electronic surveillance features of the new law because those provisions pose a potential threat to newsgathering.

Understanding the law requires a basic familiarity with the tools government investigators use in conducting electronic surveillance: wiretaps, pen registers and "trap and trace" devices. The following is an explanation of those procedures, when they are used and how they changed under the PATRIOT Act.

What is a wiretap?

A wiretap allows government officials to intercept and listen to wire, oral and electronic communications. The procedures for getting approval for a wiretap differ depending on whether officials are seeking the wiretap for domestic law enforcement purposes or whether foreign intelligence surveillance is involved.

If investigators are seeking the wiretap for domestic law enforcement, they must show a court that there is probable cause to believe the target of the wiretap is committing, has committed or is about to commit one of several specifically listed crimes in the U.S. Code. (18 U.S.C. § 2518 (3) (a)).

The PATRIOT Act added several terrorism offenses to the list of crimes for which a wiretap order could be granted. The added crimes are chemical weapons offenses, use of weapons of mass destruction, violent acts of terrorism transcending national borders, financial transactions with countries that support terrorism, and material support of terrorists or terrorist organizations. (18 U.S.C. § 2516).

The procedures are less strict if the wiretap will involve foreign intelligence, meaning information that relates to the ability of the United States to protect against attacks, sabotage or clandestine intelligence activities by a foreign power or an agent of a foreign power, or that relates to national defense, national security or U.S. foreign affairs. (50 U.S.C. § 1801).

The presence of foreign intelligence information triggers procedures under the Foreign Intelligence Surveillance Act (FISA).

Unlike wiretapping conducted under domestic law enforcement procedures, FISA allows electronic surveillance without a showing of probable cause of criminal activity. Instead, FISA requires only a finding of probable cause that the target of the surveillance is a foreign power or an agent of a foreign power. (50 U.S.C. § 1805).

If the target is a "United States person" -- meaning a U.S. citizen, resident alien or U.S. corporation -- there must be probable cause to believe the person's activities involve a crime, that the person knowingly engaged in sabotage or international terrorism, or that the person entered the United States under a false identity on behalf of a foreign power while already in this country. (50 U.S.C. § 1801 (b)(2)).

Unlike ordinary wiretaps, a secret court grants FISA wiretaps. (50 U.S.C. § 1803). This is the same secret court that issues the orders that can force libraries, bookstores, businesses -- and possibly newspapers -- to produce "any tangible thing" for terrorism investigations.

Also unlike ordinary wiretaps, in which authorities must report what they heard on the wiretap to the court that allowed the surveillance, FISA wiretaps do not require government authorities to report their findings to the secret court.

What is a roving wiretap?

The PATRIOT Act expanded the reach of FISA surveillance by allowing "roving" wiretaps.

Previously, wiretaps were issued for a particular phone or specific communication device, such as a computer. The PATRIOT Act allows authorities acting under a FISA order to intercept phone conversations and e-mail communications on any phone or computer that a target of surveillance uses.

This expanded power applies only to foreign intelligence surveillance, not ordinary law enforcement activities.

Previously, every time a target of surveillance switched phones or e-mail accounts, government investigators had to return to the secret FISA court for a new order to change the name of the third party whose help was needed to install the wiretap, the Congressional Research Service explains in its analysis of the PATRIOT Act. Now, the secret court can issue a generic order requiring anyone to help investigators tap any phone, computer or other communication device the suspect might use.

Rovings wiretaps have been of particular concern because of the possibility that the phone of a journalist working on a terrorism investigation could come within the scope of these broad wiretap authorizations.

What are pen registers and trap-and-trace devices?

A pen register tracks outgoing calls by identifying the numbers dialed from a particular phone.

A trap-and-trace device tracks incoming calls, by phone number, made to a particular phone.

Probable cause of criminal activity is not required for law enforcement to obtain a court order to install the devices. Instead, a lower standard is applied. For domestic law enforcement, the government official seeking to install a pen register or trap-and-trace device must certify to a court that the information likely to be obtained is relevant to an ongoing criminal investigation. (18 U.S.C. § 3122 (b)(2)) The law does not require the target of the surveillance to be a suspect in the investigation.

Under FISA, the agency seeking permission to install the devices must certify that they are likely to reveal information relevant to a foreign surveillance investigation. (50 U.S.C. § 1842(c) (2)).

The PATRIOT Act allows the devices to be installed on cell phones, Internet accounts and e-mail to gather dialing, routing, addressing and signaling information -- but not content.

For example, a government investigator with a court order could install the device on a person's e-mail account and get a list of all the e-mail addresses flowing in and out of the account, but the investigator could not read the contents of the e-mail.

What does this mean for journalists?

As was the case before the PATRIOT Act passed, government investigators cannot wiretap a reporter's phones and e-mail accounts unless they had probable cause that the reporter had committed or was about to commit a crime.

But by contacting someone who is the target of foreign intelligence surveillance, the reporter might be vulnerable to having a pen register or trap-and-trace device placed on the reporter's phone and e-mail accounts, because the government agent has to certify to a secret court only that the information likely to be obtained would be relevant to an ongoing foreign intelligence investigation. Once approved, the devices give investigators a list of every e-mail address and phone number the reporter is contacting, although not the contents of those communications.

And because all of this goes on in secret, the reporter may never know that his or her communications have been under government surveillance.

How likely is this to happen?

No one knows. In their June 2002 letter to Ashcroft seeking information on how the Justice Department was implementing the PATRIOT Act, Reps. Sensenbrenner and Conyers of the House Judiciary Committee asked how many times the department had obtained permission for roving wiretaps, pen registers and trap-and-trace devices. The congressmen did not ask how many times journalists had been caught up in such investigations.

Bryant, the assistant attorney general who responded to the letter, did not provide the information to Sensenbrenner and Conyers. Instead, he wrote them that the information on roving wiretaps was classified; he did not respond at all to the question on pen registers and trap-and-trace devices.

Reporters do have a measure of protection in the Attorney General's Guidelines for Subpoenaing Members of the News Media, which have been in place since the Nixon Administration. Those guidelines, which do not carry the force of law, require that news media subpoenas identify particular relevant information that cannot be obtained any other way. The guidelines also call for negotiations between the Justice Department and the reporter when the agency seeks a subpoena against the news media. (28 C.F.R. § 50.10).

The Bush administration has shown that it will ignore those guidelines if it believes the reporter might have information that could help a criminal investigation.

The Justice Department violated the guidelines in 2001 when it subpoenaed the telephone records of Associated Press reporter John Solomon. The agency was trying to discover the reporter's confidential source for information about a now-closed investigation of Sen. Robert Torricelli (D-N.J.).

Solomon did not learn until late August 2001 about the subpoena, which covered his phone records from May 2 to 7, 2001. The Justice Department did not negotiate with Solomon or his employer, did not say why the reporter's phone records were essential to a criminal investigation, and did not explain why the information could not be obtained any other way.

Also, the Justice Department ignored a provision in the guidelines that allows no more than a 90-day delay in notifying a reporter about a subpoena. The department missed that deadline in the Solomon case.

The Solomon subpoena was issued before September 11 and before Congress enacted the PATRIOT Act. But it could be a bellwether event in gauging the willingness of the Bush administration to use journalists as a tool of surveillance -- with the PATRIOT-aided twist of no longer notifying journalists when they are implicated in these investigations.

Next section: The reporter's privilege