The USA PATRIOT Act: Past, Present, Future

1. The USA PATRIOT Act:Past, Present, Future EDUCAUSE Live! WebcastJune 7, 2005Jim DempseyCenter for Democracy & Technologyhttp://www.cdt.org

2. Legislative History 9/20/2001 - 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 Senate  10/ 26 - signed by Pres.

3. 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.

4. 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.

5. PATRIOT Act Themes  Intelligence searches -- broader scope and greater secrecy call for compensating controls  Fourth Amendment standards: o Judicial approval o Factual basis o Particularized suspicion o Notice  The storage revolution - records held by third parties

6. “The Wall” – Primary Purpose and Info Sharing • Foreign Intelligence Surveillance Act (FISA) vs criminal o 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

7. 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.

8. National Security Letters o Financial o Credit o Telephone/Internet No judicial approval No factual basis No particularized suspicion

9. 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.

10. “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.

11. 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 harm o flight from prosecution, o destruction of evidence o intimidation of potential witnesses; o otherwise seriously jeopardize an investigation or unduly delay a trial.

12. 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 FISA o Sec. 212 – emergency disclosures of email w/o a court order o Sec. 215 – access to business records under FISA (the “library records” provision) o Sec. 217 – interception of computer trespasser communications w/o a court order o Sec. 218 – the “significant purpose” provision

13. 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

14. 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.”

15. 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 provision  limit initial delay to 7 days, extensible by court

16. 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

17. 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

18. 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

19. 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

20. PATRIOT Expansion Administrative Subpoenas • No judicial approval  No notice to interested party  Not normally available to FBI  Different from grand jury subpoena

21. CALEA and VoIP • Communications Assistance for Law Enforcement Act of 1994 (CALEA)  Requires telephone companies to design switches to ensure governmental access  Excludes “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 layer o Application layer • Federal Communications Comm’n (FCC) proceeding

22. The Future of Surveillance • Keystroke loggers • Location information (e.g., GPS) • The storage revolution – the benefits and risks of remote storage  Gmail – 1 gigabyte free  Yahoo! Paid customers – 2 gigabytes  Photos, calendars, drafts  VoIP storage

23. 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