USA PATRIOT ACT

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USA PATRIOT ACT

• Sam Smith
• David Moser

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A Mouthful of Patriotism

• U Uniting and
• S Strengthening
• A America by
• P Providing
• A Appropriate
• T Tools
• R Required to
• I Intercept and
• O Obstruct
• T Terrorism

Original name of the Senate version of the bill
(S. 1510).
Original name of the House version of the bill
(H.R. 2975).
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Passing the Patriot Act

• Drafted, debated, passed in 45 days.
• No public hearings.
• Over 342 pages long.
• Final draft introduced in House at 345 am and
  passed by 11 am the same day.

Look for me in this clip!
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Purposes of the PATRIOT ACT

• (1) Increased procedural efficiency in the fight
  against terrorism.
• (2) Tear down the bureaucratic and legal wall
  between the Executive branchs criminal
  investigation arm and its intelligence (foreign
  and domestic) arm.
• (3) Expand law enforcement's investigative and
  surveillance authority.

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How the Patriot Act Works

• Amends gt12 important statutory schemes
• Wiretap Act (18 U.S.C. 2510-2522)
• Foreign Intelligence Surveillance Act (50
  U.S.C. 1801)
• Electronic Communications and
• Privacy Act (18 U.S.C. 2701-2712)
• Pen Register Trap-Trace Act
• (18 U.S.C. 3121-3127)
• Computer Fraud and Abuse Act
• (18 U.S.C. 1030)

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Changes to Wiretap Act

• 202 - Adds felony violations of 1030 (computer
  hacking) to the list of predicate offenses for
  seeking a wiretap order.
• 217 - The govt can intercept real-time
  communications w/o a wiretap order if the victim
  of a computer attack authorizes law enforcement
  to monitor trespassers on the victims computer
  systemi.e. asks the govt to come in and find the
  bad guy via intercepting the bad guys
  communications with the victims computer. (Lower
  hurdle!)

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Changes to FISA

• As Written in 1978
• Allowed courts to issue orders authorizing govt
  to electronically surveil any person (even U.S.
  persons) upon a showing of probable cause that
  the person is an agent of a foreign power.
• Govt must certify that information sought by
  electronic surveillance must be foreign
  intelligence information.
• Sabotage or international terrorism by a foreign
  power.
• Clandestine intelligence activities by a foreign
  power.

• As Interpreted by Courts
• Courts could not issue a FISA order unless the
  govt demonstrated that its primary purpose in
  seeking the order was to gather foreign
  intelligence informationnot domestic criminal
  investigation and prosecution.
• Required govt to erect a wall btw the DoJ and
  the FBI anytime govt wanted to use evidence
  gathered under a FISA order in a domestic
  prosecution.
• Appointed chaperones to prevent collaboration btw
  DoJ and FBI on prosecutions.

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Changes to FISA

• As Amended by Patriot Act
• Eliminated primary purpose test by changing the
  statute to authorize a FISA order upon the
  certification that a significant purpose of the
  contemplated surveillance was to gather foreign
  intelligence information. (Lower hurdle!)
• Included provision explicitly allowing the govts
  law enforcement and intelligence gathering
  divisions to collaborate and coordinate to
  prevent sabotage and international terrorism.

• As Interpreted by In re Sealed Case (2002)
• Investigation and prosecution of foreign
  intelligence crimes (such as sabotage and
  international terrorism) can be the primary
  purpose behind the FISA order.
• Prosecution of crimes cannot be the only purpose
  for seeking the FISA order.
• But, courts cannot inquire into the govts
  intended use of information gathered with a FISA
  order and cannot prevent collaboration btw the
  DoJ and FBI in criminal prosecutions.

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Changes to FISA
Evidence of Ordinary Crimes Committed by Ordinary
People Discovered With a FISA Order?

• Govt is not required to ignore it.
• Intelligence division may transfer evidence to
  the criminal justice division for prosecution.
• 50 U.S.C. 1801(h)(3)
• 4th Amendments plain view doctrine does not
  require govt to ignore this kind of evidence
  either.
• United States v. Wen (7th Cir. 2006)

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Changes to the ECPA

• 209 Unchecked voicemail is no longer governed
  by the Wiretap Act. Now, it is subject to the
  ECPA and treated like unchecked e-mail. (Lower
  hurdle!)

• 211 Cable providers that also offer Internet
  services must comply with the ECPA, rather than
  the Cable Act, when the govt compels disclosure
  of a customers Internet service information.
  (Lower hurdle!)

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Changes to the ECPA
ISP
ISP

• 220 Extra-judicial search warrants in
  unchecked e-mail cases.

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Changes to ECPA
212 - New categories of voluntary disclosure

• Emergency Exception Voluntary disclosure of
  customer information permitted when the
  communications provider reasonably believes that
  an emergency involving immediate death or SBI to
  any person requires disclosure without delay.
  (Lower hurdle!)

• Self-Protection Exception Voluntary disclosure
  of customer information permitted where
  disclosure is necessary to the protect (from
  attack) the property of a communication provider.
  (Lower hurdle!)

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Changes to Pen/Trap Act

• 216 Updated the Pen/Trap Statute for the
  Internet Age
• (1) Made statute applicable to Internet and
  e-mail. Govt get a court order allowing them to
  capture non-content address and routing
  information such as e-mail headers (to/from
  info) IP addresses Internet user account
  addresses and port numbers.
• (2) Authorized intangible trap/trace devices.
  Govt can use computer programs instead of a
  physical device to capture addressing
  information.
• (3) Extra-territorial court orders for the
  installation of trap/trace devices. Now, a court
  in Oregon can order installation of a trap/trace
  program by an ISP in Cal. to monitor a suspects
  e-mail and Internet activity.

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Changes to Pen/Trap Act
(4) One court order compels compliance by all
communications providers in the chain of a target
communication.
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Changes To 1030(a)(5)
814 Updated Computer Fraud and Abuse Act to
prevent and Deter so-called cyber terrorism.

• Stiffer Penalties
• Double the statutory penalties for first-time and
  repeat offenders.
• Required sentencing judges to count state hacking
  convictions as prior convictions for the
  purpose of applying the first-time penalty or the
  repeat offender penalty.

• Easier to Prosecute
• Allows aggregation of losses (i.e. damages) to
  meet jdxl element.
• Created a new jdxl basis for prosecuting
  hackers intentionally accessing and damaging a
  govt computer used for national defense or
  criminal justice.

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Changes To 1030(a)(5)
814 Updated Computer Fraud and Abuse Act to
incentivize U.S. participation in international
hacker investigations.

• Expanded definition of Protected Computer to
  include foreign computers (that have an effect on
  domestic interstate commerce or communications in
  the United States).
• With this new power, the United States can
• (1) prosecute hackers that target exclusively
  foreign computers.
• (2) prosecute foreign-based hackers that route
  their harmful communications though U.S.-based
  computers on their way to the target computer
  based in a foreign nation.

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Changes To 1030(a)(5)
Attacking foreign computers Feds have jdx to
prosecute.
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Changes To 1030(a)(5)
Route attacks thru U.S. computers Feds have
jdx to prosecute.
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Changes to Warrant Execution
213 Delaying notice of warrants execution

• Created a uniform standardreasonable
  cause--for evaluating delaying notice that a
  search warrant had been executed.
• A court is empowered to delay notice of a
  warrants execution if the govt proves that
  reasonable cause exists to believe that immediate
  notification of a warrants execution may have an
  adverse result (i.e. endangering safety of
  persons of evidence).

• If the court allows delayed notice, then notice
  must be served w/in a reasonable period
  following the execution of a warrant.
• What is a reasonable period?
• 90 days? See 18 U.S.C. 2518(8)(d) (delays of
  notice in executions of wiretap orders).
• 60 days? See United States v. Allie (5th Cir.
  1992).
• 45 days? United States v. Freitas (9th Cir.
  1986).
• 7 days, plus possible extensions? See United
  States v. Villegas (2nd Cir. 1990).

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Extending the Patriot Act

• The Patriot Act was reauthorized and extended by
  two Acts
• (1) USA Patriot and Terrorism Prevention
  Reauthorization Act of 2005.
• (2) USA PATRIOT Act Additional Reauthorizing
  Amendments Act of 2006.

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What Was Reauthorized?

• 14 of the 16 provisions that were set to sunset
  in 2005, including
• 209 Stored voice communications to be treated
  same as email. (Search Warrant)
• 212 ISP can disclose both content and
  non-content of customer records in emergency
  situations that involve immediate danger of
  physical harm.
• 214 (Pen Register)
• 217 (Victims acting under color of law)
• 218 (Expansion of FISA)
• 220 (Courts from outside jurisdiction issuing
  warrants)

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What Was Reauthorized?

• Two other provisions were reauthorized with new
  sunset dates of December 31, 2009
• 215 3rd party holders of information.
  (Business Records)
• 206 Roving Wiretaps.

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What Was Reauthorized?

• Key Change to Section 213 (Sneak and Peek)
• Change from reasonable period to 30 days. With
  court able to extend if good reason to do so.

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Controversial Sections of the Act

• 206 Roving Wiretaps
• Expands FISA to permit surveillance of a
  particular target (person).
• Any phone or computer target could potentially
  use could be monitored.
• If target is using a public network, i.e.
• school or library, all computers he
• could potentially use can be monitored.
• Erodes particularity requirement
• of the 4th amendment.
• Opponents fear this could lead to
• fishing expeditions.
• Lack of judicial oversight.
• Originally scheduled to sunset in 2005,
• was renewed until December 31, 2009.

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Controversial Sections of the Act
213 218 Sneak and Peeks and the FISA
Expansion

• Changed from primary purpose requirement, to
  significant.
• Extends Sneak and Peek authority under FISA to
  any criminal search.
• Secret searches without notice, if immediate
  notification of the execution of the warrant may
  have an adverse result.
• Originally, notice must have been given within a
  reasonable time after the search. This was
  later amended to 30 days unless the court
  granting the warrant has a good reason to extend
  past 30 days.

• Question Criminal justice system already had in
  place exigent circumstances where notice is not
  required, i.e. destruction of evidence or flight
  of suspect. Why is this not good enough? Or is
  it the same thing?
• Judge Aiken held these sections to be
  unconstitutional believing it to be an end
  around the 4th amendment.

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Controversial Sections of the Act

• 214 Pen Registers
• Removes warrant requirement as
• long as government can certify that
• info is relevant to ongoing
• international terrorism
• investigation.
• Courts cannot inquire into
• truthfulness of the certification.
• Can be used for criminal
• prosecution.
• Originally scheduled to sunset in
• 2005, was renewed with no sunset
• provision.

Question Does this remove probable cause
standard for criminal cases if it is somehow
relevant to a terrorism investigation?
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Controversial Sections of the Act

• 216 Pen/Trap applies to Internet
• Non-content based information.
• Not just terror related any ongoing criminal
  investigation.
• Court in one jurisdiction can issue warrant for
  computer in another jurisdiction.
• Good reason for this given complex nature of the
  Internet.
• Criticism is that this could lead to forum
  shopping.

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Controversial Sections of the Act
215 3rd Party Holders

• Often referred to as the library records
  provision
• Financial, library, travel, phone, medical,
  church records.

• Expanded FISA
• Under FISA government had to show that the
  warrant was for the purpose of conducting
  foreign intelligence
• Target had to be linked to foreign espionage
• agent of a foreign power.

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Controversial Sections of the Act

• 215 3rd Party Holders (cont.)
• Now government only has to certify that the
  investigation is terrorist related. No evidence
  or showing of probable cause is needed. Rubber
  stamp.
• Target doesnt need to be terror suspect, only
  somehow related.
• Target does not need to be notified that
  documents have been subpoenaed.
• Originally set to sunset in 2005, renewed until
  12/31/2009.

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Controversial Sections of the Act

• 505 National Security Letters
• Administrative subpoena assertion that the
  records would be relevant to an ongoing terrorism
  investigation.
• Seize financial, communication, personal
  documents held by 3rd parties.
• Before PATRIOT ACT these could only be issued
  against individuals suspected of espionage. Now
  against anyone even if not suspected of espionage
  or criminal activity.
• Unlike Section 215, here there is no judicial
  oversight whatsoever. When reauthorized this was
  changed to include a judicial review element.
  Closed proceedings and ex parte.
• Those forced to turnover records are gagged
  from disclosing it.

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Criticizing the Patriot Act
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End