USA PATRIOT ACT

Bob R. Cherry, J.D.

 

What’s in a name

nUSA PATRIOT Act:

nUniting and

nStrengthening

nAmerica by

nProviding

nAppropriate

nTools

nRequired to

nIntercept and

nObstruct

nTerrorism

 

What’s in a name, cont.

nRunner-up: Giving Effective Tools to Obstruct Suspected Anarchic and Militant Activities (Act): Get Osama Act

 

Introduction

nThe USA PATRIOT Act passed in the wake of the September 11 terrorist attacks.

nSigned into law 45 days later by President George W. Bush on October 26, 2001.

nThe stated purpose of the Act is to:

nenable law enforcement officials to track down and punish those responsible for the terrorist attacks; and

nto protect against any similar attacks.

 

Ten Titled Sections
covering a variety of areas:

nbanking

nmoney laundering

nsurveillance

nborder protection

nvictims’ support

ninformation sharing within the infrastructure

nstrengthening of criminal laws against terrorism

 

Titles I - V

nTITLE I--ENHANCING DOMESTIC SECURITY AGAINST TERRORISM

nTITLE II--ENHANCED SURVEILLANCE PROCEDURES

nTITLE III--INTERNATIONAL MONEY LAUNDERING ABATEMENT AND ANTI-TERRORIST FINANCING ACT OF 2001

nTITLE IV--PROTECTING THE BORDER

nTITLE V--REMOVING OBSTACLES TO INVESTIGATING TERRORISM

 

Titles VI - X

nTITLE VI--PROVIDING FOR VICTIMS OF TERRORISM, PUBLIC SAFETY OFFICERS, AND THEIR FAMILIES

nTITLE VII--INCREASED INFORMATION SHARING FOR CRITICAL INFRASTRUCTURE PROTECTION

nTITLE VIII--STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM

nTITLE IX--IMPROVED INTELLIGENCE

nTITLE X--MISCELLANEOUS

 

INCREASED POLICE POWERS

nGrants federal officials greater powers to trace and intercept terrorists’ communications both for law enforcement and foreign intelligence purposes.

nRe-enforces federal anti-money laundering laws and regulations in an effort to deny terrorists the resources necessary for future attacks.

nTightens our immigration laws to close our borders to foreign terrorists and to expel those among us.

 

INCREASED POLICE POWERS, cont.

nVests the Secretary of the Treasury with regulatory powers to combat corruption of U.S. financial institutions for foreign money laundering purposes.

nCreates a few new federal crimes, such as outlawing terrorists’ attacks on mass transit, and increases the penalties for many other crimes.

nInstitutes several procedural changes, such as a longer statute of limitations for crimes of terrorism.

 

TITLE I—ENHANCING DOMESTICE SECURITY AGAINST TERRORSIM

nSec. 101. Counterterrorism fund.

nSec. 102. Sense of Congress condemning discrimination against Arab and Muslim Americans.

nSec. 103. Increased funding for the technical support center at the Federal Bureau of Investigation.

nAddition to established funding for section 811 of the Antiterrorism and Effective Death Penalty Act of 1996

n$200,000,000 addition each year for 2002-2004

nSec. 104. Requests for military assistance to enforce prohibition in certain emergencies.

nSec. 105. Expansion of National Electronic Crime Task Force Initiative.

nDirector of US Secret Service shall create national task force on the New York Electronic Crimes Task Force model

nOperate throughout the United States

nFor the purpose of “preventing, detecting and investigating various forms of electronic crimes.”

nSec. 106. Presidential authority.

 

TITLE II—ENHANCED SURVEILLANCE PROCEDURES

nSec. 201. Authority to intercept wire, oral, and electronic communications relating to terrorism.

nSec. 202. Authority to intercept wire, oral, and electronic communications relating to computer            fraud and abuse offenses.

nSec. 203. Authority to share criminal investigative information.

nSec. 204. Clarification of intelligence exceptions from limitations on interception and disclosure of         wire, oral, and electronic  communications.

nSec. 205. Employment of translators by the Federal Bureau of Investigation.

nSec. 206. Roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978.

nSec. 207. Duration of FISA surveillance of non-United States persons who are agents of a foreign       power.

 

TITLE II—ENHANCED SURVEILLANCE PROCEDURES

nSec. 208. Designation of judges.

nSec. 209. Seizure of voice-mail messages pursuant to warrants.

nSec. 210. Scope of subpoenas for records of electronic communications.

nSec. 211. Clarification of scope.

nSec. 212. Emergency disclosure of electronic communications to protect life and limb.

nSec. 213. Authority for delaying notice of the execution of a warrant.

nSec. 214. Pen register and trap and trace authority under FISA.

nSec. 215. Access to records and other items under the Foreign Intelligence Surveillance Act.

nSec. 216. Modification of authorities relating to use of pen registers and trap and trace devices.

 

“This phone is tapped” picture, found at: http://www.crimethinc.com/cards/28_med.gif

 

TITLE II—ENHANCED SURVEILLANCE PROCEDURES

nSec. 217. Interception of computer trespasser communications.

nSec. 218. Foreign intelligence information.

nSec. 219. Single-jurisdiction search warrants for terrorism.

nSec. 220. Nationwide service of search warrants for electronic evidence.

nSec. 221. Trade sanctions.

nSec. 222. Assistance to law enforcement agencies.

nSec. 223. Civil liability for certain unauthorized disclosures.

nSec. 224. Sunset.

nSec. 225. Immunity for compliance with FISA wiretap.

 

TITLE II—ENHANCED SURVEILLANCE PROCEDURES

nSharing of Information

nLaw enforcement with federal agencies

nComputer Trespass

nDeputizing owners and operators of IT (Posse Comitatus )

n New Access

n“Rubber Stamp” and National Service for Subpoenas

nCompensations

nFBI compensate ISP

nCivil actions for computer abuse over $5,000 (814 of Title VIII).

 

Criminal Investigations: Tracking and Gathering Communications

nFederal communications privacy law features a three tiered system, erected for the dual purpose of:

nprotecting the confidentiality of:

nprivate telephone,

nface-to-face, and

ncomputer communications

nwhile enabling authorities to identify and intercept criminal communications.

 

Criminal Investigations: Tracking and Gathering Communications

nTitle III of the Omnibus Crime Control and Safe Streets Act of 1968 supplies the first level:

nProhibits electronic eavesdropping on telephone conversations, face-to-face conversations, or computer and other forms of electronic communications in most instances.

nIt does, however, give authorities a narrowly defined process for electronic surveillance to be used as a last resort in serious criminal cases. When approved by senior Justice Department officials, law enforcement officers may seek a court order authorizing them to secretly capture conversations concerning any of a statutory list of offenses (predicate offenses).

nTitle III court orders come replete with instructions describing the permissible duration and scope of the surveillance as well as the conversations which may be seized and the efforts to be taken to minimize the seizure of innocent conversations.

nThe court notifies the parties to any conversations seized under the order after the order expires.

 

Criminal Investigations: Tracking and Gathering Communications

nThe next tier of privacy protection , 18 U.S.C. 2701-2709, covers:

ntelephone records, e-mail held in third party storage, and the like.

nPermits law enforcement access, ordinarily

npursuant to a warrant or court order or

nunder a subpoena in some cases,

nbut in connection with any criminal investigation, and

nwithout the extraordinary levels of approval or constraint that mark a Title III interception.

 

Criminal Investigations: Tracking and Gathering Communications

nThe third tier, governed by 18 U.S.C. 3121-3127, consist of court orders approving the government’s use of trap and trace devices and pen registers, a kind of secret “caller id.”, which identify the source and destination of calls made to and from a particular telephone.

nThe orders are available based on the government's certification, rather than a finding of a court, that use of the device is likely to produce information relevant to the investigation of a crime, any crime.

nThe devices record no more than identity of the participants in a telephone conversation, but neither the orders nor the results they produce need ever be revealed to the participants.

 

Criminal Investigations: Tracking and Gathering Communications

nThe USA Patriot Act modifies the procedures at each of the three levels. It:

npermits pen register and trap and trace orders for electronic communications (e.g., e-mail);

nauthorizes nationwide execution of court orders for pen registers, trap and trace devices, and access to stored e-mail or communication records;

ntreats stored voice mail like stored e-mail (rather than like telephone conversations);

npermits authorities to intercept communications to and from a trespasser within a computer system (with the permission of the system’s owner);

 

Criminal Investigations: Tracking and Gathering Communications

nadds terrorist and computer crimes to Title III’s predicate offense list;

nre-enforces protection for those who help execute Title III, ch. 121, and ch. 206 orders;

nencourages cooperation between law enforcement and foreign intelligence investigators;

nestablishes a claim against the U.S. for certain communications privacy violations by government personnel; and

nterminates the authority found in many of these provisions and several of the foreign intelligence amendments with a sunset provision (Dec. 31, 2005).

 

Foreign Intelligence Investigations

nThe USA Patriot Act eases some of the restrictions on foreign intelligence gathering within the United States, and

nAffords the U.S. intelligence community greater access to information unearthed during a criminal investigation,

nBut it also establishes and expands safeguards against official abuse.

 

Foreign Intelligence Investigations

nMore specifically, it:

npermits “roving” surveillance (court orders omitting the identification of the particular instrument, facilities, or place where the surveillance is to occur when the court finds the target is likely to thwart identification with particularity);

nincreases the number of judges on the Foreign Intelligence Surveillance Act (FISA) court from 7 to 11;

nallows application for a FISA surveillance or search order when gathering foreign intelligence is a significant reason for the application rather than the reason;

 

Foreign Intelligence Investigations

nauthorizes pen register and trap & trace device orders for e-mail as well as telephone conversations;

nsanctions court ordered access to any tangible item rather than only business records held by lodging, car rental, and locker rental businesses;

ncarries a sunset provision;

nestablishes a claim against the U.S. for certain communications privacy violations by government personnel; and

nexpands the prohibition against FISA orders based solely on an American’s exercise of his or her First Amendment rights.

 

TITLE III—INTERNATIONAL MONEY
LAUNDERING ABATEMENT AND ANTITERRORIST
FINANCING ACT OF 2001

nSec. 301. Short title.

nSec. 302. Findings and purposes.

nSec. 303. 4-year congressional review; expedited consideration.

 

Money Laundering

nIn federal law, money laundering is the flow of cash or other valuables derived from, or intended to facilitate, the commission of a criminal offense.

nIt is the movement of the fruits and instruments of crime.

nFederal authorities attack money laundering through:

nregulations,

ncriminal sanctions, and

nforfeiture.

nThe Act bolsters federal efforts in each area.

 

Money Laundering

nRegulation: The Act expands the authority of the Secretary of the Treasury to regulate the activities of U.S. financial institutions, particularly their relations with foreign individuals and entities.

nThe Secretary is to promulgate regulations:

nunder which securities brokers and dealers as well as commodity merchants, advisors and pool operators must file suspicious activity reports (SARs);

nrequiring businesses, which were only to report cash transactions involving more than $10,000 to the IRS, to file SARs as well;

nimposing additional “special measures” and due diligence” requirements to combat foreign money laundering;

nprohibiting U.S. financial institutions from maintaining correspondent accounts for foreign shell banks;

 

Money Laundering

npreventing financial institutions from allowing their customers to conceal their financial activities by taking advantage of the institutions’ concentration account practices;

nestablishing minimum new customer identification standards and recordkeeping and recommending an effective means to verify the identity of foreign customers;

nencouraging financial institutions and law enforcement agencies to share information concerning suspected money laundering and terrorist activities; and

nrequiring financial institutions to maintain anti-money laundering programs which must include at least:

na compliance officer;

nan employee training program;

nthe development of internal policies, procedures and controls; and

nan independent audit feature.

 

Money Laundering

nCrimes: The Act contains a number of new money laundering crimes, as well as amendments and increased penalties for earlier crimes. It:

noutlaws laundering (in the U.S.) any of the proceeds from foreign crimes of violence or political corruption;

nprohibits laundering the proceeds from cybercrime or supporting a terrorist organization;

nincreases the penalties for counterfeiting;

nseeks to overcome a Supreme Court decision finding that the confiscation of over $300,000 (for attempt to leave the country without reporting it to customs) constituted an unconstitutionally excessive fine;

nprovides explicit authority to prosecute overseas fraud involving American credit cards; and

nendeavors to permit prosecution of money laundering in the place  where the predicate offense occurs.

 

Money Laundering

nForfeiture: The Act creates two types of forfeitures and modifies several confiscation related procedures.

nIt allows confiscation of all of the property of any individual or entity that participates in or plans an act of domestic or international terrorism; it also permits confiscation of any property derived from or used to facilitate domestic or international terrorism.

nThe Constitution’s due process, double jeopardy, and ex post facto clauses may limit the anticipated breath of these provisions.

 

Money Laundering

nProcedurally, the Act:

nestablishes a mechanism to acquire long arm jurisdiction, for purposes of forfeiture proceedings, over individuals and entities;

nallows confiscation of property located in this country for a wider range of crimes committed in violation of foreign law;

npermits U.S. enforcement of foreign forfeiture orders;

ncalls for the seizure of correspondent accounts held in U.S. financial institutions for foreign banks who are in turn holding forfeitable assets overseas; and

ndenies corporate entities the right to contest a confiscation if their principal shareholder is a fugitive.

 

Alien Terrorists and Victims

nThe Act contains a number of provisions designed to:

nprevent alien terrorists from entering the United States, particularly from Canada;

nenable authorities to detain and deport alien terrorists and those who support them; and

nprovide humanitarian immigration relief for foreign victims of the attacks on September 11.

 

Other Crimes, Penalties, & Procedures

nNew crimes: The Act creates new federal crimes for:

nterrorist attacks on mass transportation facilities,

nbiological weapons offenses,

nharboring terrorists,

naffording terrorists material support,

nmisconduct associated with money laundering (already mentioned),

nconducting the affairs of an enterprise which affects interstate or foreign commerce through the patterned commission of terrorist offenses, and

nfraudulent charitable solicitation.

nAlthough strictly speaking these are new federal crimes, they generally supplement existing law by filling gaps and increasing penalties.

 

Other Crimes, Penalties, & Procedures

nNew Penalties: The Act increases the penalties for acts of terrorism and for crimes which terrorists might commit.

nMore specifically it:

nestablishes an alternative maximum penalty for acts of terrorism,

nraises the penalties for conspiracy to commit certain terrorist offenses,

nenvisions sentencing some terrorists to life-long parole, and

nincreases the penalties for counterfeiting, cybercrime, and charity fraud.

 

Other Crimes, Penalties, & Procedures

nOther Procedural Adjustments: In other procedural adjustments designed to facilitate criminal investigations, the Act:

nincreases the rewards for information in terrorism cases;

nexpands the Posse Comitatus (drafting civilian aid to help law enforcement apprehend a criminal suspect) Act exceptions;

nauthorizes “sneak and peek” search warrants;

npermits nationwide and perhaps worldwide execution of warrants in terrorism cases;

neases government access to confidential information;

nallows the Attorney General to collect DNA samples from prisoners convicted of any federal crime of violence or terrorism;

nlengthens the statute of limitations applicable to crimes of terrorism;

nclarifies the application of federal criminal law on American installations and in residences of U.S. government personnel overseas; and

nadjust federal victims’ compensation and assistance programs.

 

Appropriations

n$25 million a year for FY 2003 through FY 2007 for state and local terrorism prevention and antiterrorism training grants for first responders, section 1005 (28 U.S.C. 509 note)

nnecessary sums (FY 2002 through FY 2007) for Office of Justice Programs (OJP) grants to state and local governments to enhance their capacity to respond to terrorist attacks, section 1014 (42 U.S.C. 3711)

n$250 million a year (FY 2002 through FY 2007) for OJP grants to state and local governments integrated information and identification systems, section 1015 (42 U.S.C. 14601)

n$50 million per fiscal year for the Attorney General to develop and support regional computer forensic laboratories (28 U.S.C. 509 note), section 816

n$50 million (FY 2002) and $100 million (FY 2003) for Bureau of Justice Assistance grants (42 U.S.C. 3796h) for federal-state-local law enforcement information sharing systems, section 701

n$20 million (FY 2002) for the activities of National Infrastructure Simulation and Analysis Center in DoD’s Defense Threat Reduction Agency, section 1016 (42 U.S.C. 5195c)

n$5 million for DEA police training in South and Central Asia, section 1007.

 

Extraterritoriality

nThe Act resolves the conflict by declaring within the territory of the United States those overseas areas used by American governmental entities for their activities or residences for their personnel, at least to the extent that crimes are committed by or against an American, section 804 (18 U.S.C. 7 (9)).

nThe section is inapplicable where it would otherwise conflict with a treaty obligation or where the offender is covered by the Military Extraterritorial Jurisdiction Act, 18 U.S.C. 3261.

 

TITLE VIII--STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM

nSEC. 814. DETERRENCE AND PREVENTION OF CYBERTERRORISM.

n (a) CLARIFICATION OF PROTECTION OF PROTECTED COMPUTERS.

nSection 1030(a)(5) of title 18, United States Code, is amended:

n(1) by inserting ‘‘(i)’’ after ‘‘(A)’’; (2) by redesignating subparagraphs (B) and (C) as clauses (ii) and (iii), respectively; (3) by adding ‘‘and’’ at the end of clause (iii), as so redesignated; and (4) by adding at the end the following:

n H. R. 3162—112

The Pen/Trap Statute

nOld statute:  the term "pen register" means a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached (18 U.S.C. § 3127(3))

nUSA Patriot Act Amended statute: Technology-neutral language

 

The Pen/Trap Statute

nNew Language:  the term "pen register" means a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted . . .

nNo content: . . . provided, however, that such information shall not include the contents of any communication (18 U.S.C. § 3127(3), (4))

nTechnology-neutral adjustments made throughout

What Can A Pen/Trap Device Collect?

nPlainly included: 

nMost e-mail header information (“To:”, “From:”, “Date:”, route traveled)

nSource and destination IP address and port number that handled the communication 

nPlainly excluded:

nSubject line of e-mails

nContent of e-mail message

nE-mail attachments

 

Pen/Trap: Nationwide Effect

nCan obtain order locally for a device installed in another district (18 U.S.C. § 3123(a))

nOrder is good nationwide, even if providers that carry the communication are located outside of the district (18 U.S.C. § 3123(a))

nBUT, court issuing the order must have jurisdiction over the offense

 

Pen/Trap:  DCS1000
(F/K/A “Carnivore”)

nNew reporting requirement (akin to Title III) where law enforcement uses its own device on a public provider’s network pursuant to pen/trap order (§ 3123(a)(3))

nWithin 30 days, must file under seal:

nI.d. of officers who installed/accessed device

nDate and time device installed, accessed, and uninstalled

nConfiguration of device on installation and any modifications to that configuration

nInformation collected by the device

nPen/Trap amendments do not sunset

 

The Computer Trespasser Exception

nProblem:  law enforcement could not help monitor hackers without a Title III order or an exception to Title III

nConsent of the victim often inadequate

nConsent of the hacker (via a banner) often not effective

nNo exception where user lacks reasonable expectation of privacy

nSolution: new exception to Title III at 18 U.S.C. § 2511(2)(i)

nSubject to 4-year sunset provision

nBUT, grandfather clause for pre-sunset offenses

 

Definition of Computer Trespasser

n“Computer trespasser” defined (18 U.S.C. § 2510(21)):

nPerson who accesses “without authorization”

nDefinition continues: “and thus has no reasonable expectation of privacy . . .”

 

nExcludes users who have “an existing contractual relationship”

nCongress worried about violations of terms of service agreements

nThere is an opportunity to gain consent from such users

nWithout it, possible constitutional problems

 

Limits of the New Exception

nInterception under this exception requires:

nConsent of the computer owner

nUnder color of law

nRelevant to an investigation (criminal or intelligence)

nCannot acquire communications other than to/from the trespasser

nMay combine this authority with other exceptions, such as consent

 

Voice Mail Fix

nOld law:  unopened voice mail required a Title III order (18 U.S.C. § 2510(1))

nExtra problem because of the convergence in technologies

nNew law:  all stored voice is now governed by ECPA

nSO, treat it like e-mail

nFresh, unopened voice mail:  search warrant

nOld or opened: § 2703(d) order with (delayable) notice

nHome answering machine: not affected

nSubject to the 4-year sunset provision

 

Scope of Subpoenas

nOld law:  can obtain “basic subscriber information” with a subpoena (18 U.S.C. § 2703(c)(1)(C)):

nname

naddress

nlocal and long distance telephone toll billing records

ntelephone number or other subscriber number or identity

nlength of service of a subscriber

 

Broadened Scope

nNew law: all previous categories plus (18 U.S.C. § 2703(c)(2)):

n“records of session times and durations” and “temporarily assigned network address” 

nIncl. dial-up numbers, originating IP address

nAllows historical tracing of a communication

nDoes not cover all transactional records

ni.e.,  most e-mail header information

ni.e.,  destination IP address

nInformation on credit card/bank account used to pay for an account

nNot subject to 4-year sunset clause

 

Voluntary Disclosure By Providers (Part I)

nOld law: public providers could disclose content but not non-content records to protect their rights and property

nNew law:  all voluntary disclosures covered by 18 U.S.C. § 2702

nNon-public providers can now voluntarily disclose anything for any reason

nAllows disclosures by public providers to protect rights and property (18 U.S.C. § 2702(b)(5), (c)(3))

nSubject to the 4-year sunset provision

Voluntary Disclosure by Providers (Part II)

nOld law:  no explicit provision to allow providers to disclose to protect life and limb

nNew law:  public providers can disclose content and non-content information in emergencies “involving immediate danger of death or serious physical injury” (18 U.S.C. § 2702(b)(6)(C), (c)(4))

nSubject to the 4-year sunset provision

 

Nationwide Search Warrants for E-mail

nOld law:  arguably, Rule 41 requires search warrants for e-mail to be obtained in district where e-mail resides (18 USC § 2703(a))

nNew law:  federal courts may issue warrants under § 2703(a) for providers anywhere in the country

nCourt still must have jurisdiction over the offense

nSubject to the 4-year sunset provision

 

Nationwide scope of 2703(d) Orders

nOld law: implicit (but not explicit) that § 2703(d) orders have nationwide scope

nSome magistrates refuse to sign

nNew law: definition of “court of competent jurisdiction” has no geographic limitation (18 U.S.C. § 2711(3))

nSubject to the 4-year sunset provision

 

Voice Wiretaps in Hacker Investigations

nOld law:  §1030 was not a predicate offense for Title III orders to intercept wire communications

nWhat about hackers stealing teleconferencing services to plan attack?

nNew law: adds felony violations of section 1030 to the list (18 U.S.C. § 2516(1)(c))

nSubject to the 4-year sunset provision

 

Substantive Computer Crime Law

nChange to maximum penalties

nExpand definition of damage

nDefinition of “loss”

nAllow aggregation of loss from same course of conduct

nExpand definition of “protected computer”

 

1. Change to Maximum Penalties

nMaximum penalty for intentional damage to protected computers raised from 5 years to 10 years

n20 years for repeat offenders

nState convictions now count as prior convictions for enhanced penalties

nBUT, got rid of 6 month mandatory minimum sentences for computer fraud and hacking offenses

 

2. Expanded Definition of Damage

nOld law: damage defined as:

nmonetary loss over $5,000;

nmodified or impaired, or potentially modified or impaired, medical examination, diagnosis or treatment;

ncaused physical injury; or

nthreatened public health or safety.

 

Expanded Definition of Damage

nWhat about an attack on a military computer causing minimal monetary damage?

nNew law: damage now includes harm “affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security” regardless of loss

 

3. Definition of “Loss”

nPreviously undefined by statute

nNow broadly defined as “any reasonable cost to any victim”, including

ncost of responding to an offense

ncost of conducting a damage assessment

ncost of restoring the data, program, system, or other information to its condition prior to the offense; and

nany revenue lost, cost incurred, or other consequential damages incurred because of interruption of service

 

“Loss”

‘‘(B) by conduct described in clause (i), (ii), or (iii) of subparagraph (A), caused (or, in the case of an attempted offense, would, if completed, have caused):

            (i) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $5,000 in value;

            (ii) the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals;

            (iii) physical injury to any person;

            (iv) a threat to public health or safety; or

            (v) damage affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security;’.

 

4. Aggregation of Loss

nProblem: What if hacker hit several different computers over time and each caused loss less than $5,000?

nNew law: can aggregate loss to meet $5,000 jurisdictional minimum if

nresulting from a related course of conduct

nduring any one-year period

 

5. Expand Definition of “Protected Computer”

n“Protected computer” now expressly includes computer outside the U.S.  used in such a manner that it “affects interstate or foreign commerce or communication of the U.S.”

nClearly can prosecute U.S. persons targeting foreign computers

nAppears to give jurisdiction where attack or e-mail routed through U.S.

 

Foreign Intelligence Surveillance Act  1978

nEarly recognition, if not prescience, about the potential for terrorist activities on American soil or affecting American interests internationally

nForeign relations exception to the legislative directions towards privacy as a result of the Church Committee and reflected in acts such as Freedom of Information Act and Family Educational Records Privacy Act

 

Foreign Intelligence Surveillance Act

nFISA Court (pre-Patriot Act)

nSeven federal judges

nPost Patriot Act: eleven and with residence restrictions in contemplation of an increase in requests and need for quick process of them

nMeet in closed session

nContent of applications permanently closed

nOnly statistics, and annual vice-president’s report to Congress of applications and approved.

nExample of Moussaoui Flight School case

nResults in search warrant or subpoena

nPost Patriot Act: reduced standard for approval

 

Patriot Act: Section 501 Amendments of FISA

nBusiness Records

nFBI can seize with a court order certain business records pursuant to an investigation of “international terrorism or other clandestine intelligence activities…”

nProhibits record keeper to disclosure FBI action to anyone “other than those persons necessary to produce the tangible things under this section…”

nInvestigation “not to be conducted of a United States person solely upon the basis of activities protected by the first amendment…”

Electronic Communications Privacy Act of 1986

nWhat is it?

nWiretapping Act for the Internet

nWhat is the “Wiretapping Act?”

nOlmstead 1928

nKatz 1967

n Omnibus Crime Control and Safe Streets Act of 1968 is the actual “Wiretapping Act”

nECPA brings those same legal protections of telephonic communications to electronic environment

 

ECPA: What Does It Protect?

nIdeally the privacy of communications in electronic media

nPre-Patriot Act list of exceptions

nUsual course of business

nBut not disclosure to third parties

nWireless: distinction between listening and disclosing

nAuthorized law enforcement

nCourt or Administrative Order

nSearch Warrant or Subpoena

nExecutive Order 12333 Letter

 

ECPA: To Whom Does It Apply?

nStatutory Language:

n“…providers of Internet service to the public”

nDoes it apply to colleges and universities?

nNo case law on point

nAnderson Consulting: EPCA does not apply

nDigital Millennium Copyright Act as potential “safe harbor” model of distinction between students and staff/faculty?

nAreas where there is service to the public, i.e. list serves?

nGeneral Rule

nAct as if it does, but hold question as potential defense

 

Patriot Act Amendments of ECPA

nNew “emergency” disclosure

n“Imminent danger to life and limb”

nNew “required disclosure”

n “Rubber-stamping subpoenas”

nBelow “probable cause”

n“Routing:” Pen registers and trap and trace devices

nContent is the constitutional question

 

Required Disclosure: Voice Mail 209 Patriot Act/2703

nPre-Patriot Act

nObtainable only through highest level of court order corresponding to transmission (real time) of communications

nLike telephone wiretap order

nPost Patriot

nNow obtainable like any e-mail

nStill with court order, but lower standard

Nation-Wide Service for Electronic Search Warrants

Creates a “national subpoena” obtainable from magistrates in federal district courts which can be extended to any other jurisdiction

ni.e. if FBI in Washington want something in California, they can apply for warrant in Washington federal court and have it apply to California.

 

Patriot Act Amendments of ECPA

nComputer Trespass

nOwner/Operator consent for federal intervention

nSo long as owner/operator reasonably believes investigation is relevant to computer trespass

nInvestigation of it and no other

nNo authorization required

nNo limits set, e.g. stop

nNo restraint on return with authorization based on information gathered during the invited investigation

nNo guarantee it is constitutional

nSunset provision

What is the Purpose of New Computer Trespass law?

nSections 217(1) and (2) simply alleviates owners and operators of protected computers of potential ECPA liability for their investigations and/or disclosures under certain circumstances.

nFacilitate communications between networks – private and public – and federal law enforcement

 

The Patriot Act II

nThe Domestic Security Enhancement Act of 2003

nGeneral John Ashcroft circulated a draft on Jan. 10, 2003

nSome highlights of the proposed act:

nIncreases secret surveillance

nIncreases control over immigrants

nEstablishes new crimes, criminal procedures, and sanctions

nNames new terrorism-related death penalty crimes

nGrants federal officials power to order an autopsy without permission during a federal criminal investigation

nEstablishes a new terrorist-related DNA database

nAlters procedure for taking away U.S. citizenship

nAllows extradition without treaty and expanded deportation

 

Summary

nProsecutors will seek judicial authority to intercept communications related to an expanded list of terrorism-related crimes such as: the development, possession, or use of chemical or biological weapons; financial transaction with a terrorist government; or providing material support to terrorists or terrorist organizations. 

 

Summary, cont.

nInvestigators will use "roving" wiretaps to intercept communications and thereby thwart the ability of terrorists to evade surveillance by switching phones or communication devices.

 

Summary, cont.

nInvestigators will now aggressively pursue terrorists on the Internet. 

nThe legislation permits investigators to obtain senders and receivers e-mail addresses just as it is done with telephone surveillance. 

nTerrorists employ sophisticated technologies to evade detection and the legislation updates the law to the technology. 

nInvestigators will use search warrants to obtain unopened voice-mail and email.

 

Summary, cont.

nNew subpoena power will enable authorities to obtain payment information, such as credit card or bank account numbers, of suspected terrorists on the Internet.  

nThis will allow investigators to identify the terrorist who hides behind a fictitious Internet name.

 

Summary, cont.

nInvestigators will be able to use a single court order to trace a communication nationwide, even when it travels beyond the judicial district that issued the order. 

nThe scope of search warrants for unopened e-mail and other evidence will also be nationwide. 

nThis improved efficiency will save hours or days in investigations where seconds matter.

Summary, cont.

nLaw enforcement and intelligence communities will share information on terrorist activities and thus better coordinate their efforts to prevent terrorism.

 

Resources

nThe USA PATRIOT Act, H. R. 3162

nCRS Report for Congress, Charles Doyle, Senior Specialist, American Law Division:

nThe USA PATRIOT Act: A Sketch (RS21203)

nThe USA PATRIOT Act: A Legal Analysis (RL31377)

nScott S. Christie, Assistant U.S. Attorney: The USA Patriot Act of 2001: Electronic Evidence and Computer Crime

nInterview with Assistant US Attorney Scott Stein.