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The USA PATRIOT Act:Past, Present, Future

EDUCAUSE Live! Webcast

June 7, 2005

Jim DempseyCenter for Democracy & Technology

http://www.cdt.org

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Legislative History9/20/2001 - Administration draft first circulated. 9/24 - House Judiciary holds its only hearing, AG only witness. 10/3 – House Judiciary Committee markup – bipartisan support. In Senate, full Judiciary Comm holds no hearings. Constitution Sub

holds one hearing. No Subcommittee or full Committee mark-up.10/8 – Speaker refuses to move House Judiciary Comm bill.10/11 - Senate passes bill; one Senator offers 4 amendments – tabled.10/12 – 3:43 AM new House bill issued, passed by House. 10/23 – final action in House 10/ 25 – final action in Senate10/ 26 - signed by Pres.

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Prevention of Terrorism Does Not Require Suspension of Standards

and Oversight

Terrorism poses a grave and imminent threat to our nation.

The government must have strong investigative authorities to collect information to prevent terrorism.

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.

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Abuses of civil liberties and human rights – outside the PATRIOT Act

The torture at Abu Ghraib and other locations.The detention of US citizens in military jails without

criminal charges. The detention of foreign nationals in Guantanamo and other

locations.The rendition of detainees to other governments known to

engage in torture. Haphazard and prolonged post 9/11 detentions of foreign

nationals in the U.S., the physical abuse of some and the blanket closing of deportation hearings.

Abuse of the material witness law to hold individuals in jail without charges.

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PATRIOT Act Themes

Intelligence searches -- broader scope and greater secrecy call for compensating controls

Fourth Amendment standards:oJudicial approvaloFactual basis oParticularized suspicion oNotice

The storage revolution - records held by third parties

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“The Wall” – Primary Purpose and Info Sharing

• Foreign Intelligence Surveillance Act (FISA) vs criminalo Criminal investigators are now able to initiate

and control FISA surveillances.o FISA court now issues more surveillance orders

in national security cases than all the other federal judges issue in all other criminal cases

o Lack of full right to challenge at trial

• Sharing grand jury, other criminal info

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Business Records Provision

• Court order to compel disclosure of any kind of records, upon the mere claim that they are connected with an intelligence investigation. o Gives the FBI authority to get court order to seize any records

of any entity. Includes libraries and bookstores. o No factual basis need be stated.o No particularized suspicion (vs. “agent of a foreign power”).o Allows the FBI to obtain whole databases of information,

including records of people not suspected of any wrongdoing. o Judges must approve every request submitted by the

government. o Gag order applies.

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National Security Letters

oFinancial

oCredit

oTelephone/Internet

No judicial approval

No factual basis

No particularized suspicion

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Emergency Disclosures• Section 212

o Authorizes an ISP to disclose email, stored voicemail, draft documents and other stored information to law enforcement when government states that there is an emergency involving a threat to life.

• Section 217

o Authorizes the government to carry out real-time surveillance when an ISP, a university, or another system operator authorizes the surveillance on the grounds that there is a “trespasser” within the operator’s computer network.

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“Off the Books” Surveillance

There is never a report to a judge. (In contrast, under both Title III and FISA, when electronic surveillance is carried out on an emergency basis, an application must be filed after the fact.)

There is no time limit placed on the disclosures or interceptions. (A Title III wiretap cannot continue for more than 30 days without new approval.)

There is never notice to the person whose communications are intercepted or disclosed.

The interceptions and disclosures are not reported to Congress.

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Sneak and Peek Searches• Allows law enforcement agencies to search homes and

offices without notifying the owner for days or weeks after.• Not only in terrorism cases, but in all cases. • Requires search warrant. • Standard: whenever there is reasonable cause to believe that

notice at time of search may result in o danger of physical harmo flight from prosecution, o destruction of evidence o intimidation of potential witnesses;o otherwise seriously jeopardize an investigation or

unduly delay a trial.

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Sunsets• Of over 150 provisions in the PATRIOT Act, only 16

provisions are covered by the sunset. They include

o Sec. 203(b) – sharing criminal wiretap information w/ intelligence agencies

o Sec. 206 – roving taps under FISAo Sec. 212 – emergency disclosures of email w/o a court ordero Sec. 215 – access to business records under FISA (the “library

records” provision)o Sec. 217 – interception of computer trespasser

communications w/o a court ordero Sec. 218 – the “significant purpose” provision

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Sunsets (cont’d)

• Some controversial provisions are not covered by the sunset, including:

o Sec. 213 – sneak and peek searches

o Sec. 216 – pen registers for the Internet

o Sec. 358, 505 – “National Security Letter” exceptions to privacy laws

o Sec. 802 – definition of domestic terrorism

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No Tech Mandates. No Data Retention Requirements

• Section 222: “Nothing in this Act shall impose any additional technical obligations or requirement on a provider of a wire or electronic communication service or other person to furnish facilities or technical assistance.”

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Security and Freedom Enhancement (SAFE) Act

• FISA Roving Wiretaps (Section 206 of the PATRIOT Act)

Require identification of either location or target

• “Sneak & Peek” Searches (Section 213)eliminate the catch-all provisionlimit initial delay to 7 days, extensible by court

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Security and Freedom Enhancement (SAFE) Act (cont’d)

• FISA Orders for Library and Other Personal Records (Section 215)

restore a standard of individualized suspicion for obtaining a FISA order - facts indicating a reason to believe the tangible things sought relate to a suspected terrorist or spy

give the recipient of a FISA order the right to challenge the order

require a showing by the government that a gag order is necessary

place a time limit on the gag order (which could be extended by the court)

give a recipient the right to challenge the gag order

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Security and Freedom Enhancement (SAFE) Act (cont’d)

• National Security Letters (Section 505)restore a standard of individualized suspicion -

reason to believe the records sought relate to a suspected terrorist or spy

give the recipient of an NSL the right to challenge the letter and the nondisclosure requirement

place a time limit on the nondisclosure requirement

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Security and Freedom Enhancement (SAFE) Act (cont’d)

• Pen Registers and Trap and Trace Devices (Section 216)

raise standard for obtaining pen/trap orders - facts indicating a reason to believe that the information sought is relevant

require delayed notice to individuals who are targets of pen/traps

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Security and Freedom Enhancement (SAFE) Act (cont’d)

• Domestic Terrorism Definition (Section 802)PATRIOT Act’s overbroad definition of domestic

terrorism could include acts of civil disobedience by political organizations.

SAFE Act would limit the qualifying offenses for domestic terrorism to those that constitute a federal crime of terrorism, instead of any federal or state crime,

• FISA Public Reporting

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PATRIOT Expansion Administrative Subpoenas

No judicial approval

No notice to interested party

Not normally available to FBI

Different from grand jury subpoena

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CALEA and VoIP• Communications Assistance for Law Enforcement Act

of 1994 (CALEA)Requires telephone companies to design switches to ensure

governmental accessExcludes “information services” – shorthand in 1994 for the

Internet

• Voice over Internet Protocol (VoIP)Telephony is migrating to Internet Where does the design obligation reside –

o Transport layero Application layer

• Federal Communications Comm’n (FCC) proceeding

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The Future of Surveillance

• Keystroke loggers• Location information (e.g., GPS)• The storage revolution – the benefits and risks of

remote storageGmail – 1 gigabyte free

Yahoo! Paid customers – 2 gigabytes

Photos, calendars, drafts

VoIP storage

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A Positive Agenda

increasing the standard for pen registers and trap and trace devices

extending Title III’s statutory suppression rule to electronic communications

eliminating the distinctions between opened and unopened email and between relatively fresh and older email

establishing a probable cause standard for access to location information

requiring reporting on access to stored communications