Privacy, Technology, and the USA PATRIOT Act continued The USA PATRIOT Act After the terrorist attacks of September 11, 2001, the debate over how much the government should know about its citizens and foreign visitors has become much more urgent. Indeed, some have argued that these attacks might have been prevented, if more and better information had been available to government agencies charged with security. The Congress has responded by enacting a number of pieces of legislation directed at remedying this perceived problem. The most significant of these is H.R. 3162, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, better known as the USA PATRIOT Act. It was signed into law on October 26, 2001. The USA PATRIOT Act is a large and complex piece of legislation that ostensibly revises or extends customary law enforcement powers defined by an assortment of previous laws such as the Omnibus Crime Bill of 1968, the Family Education Records and Privacy Act of 1974, the Foreign Intelligence Surveillance Act of 1978, and the Electronic Communications Privacy Act of 1986. PATRIOT contains no less than ten separate sections or titles ranging from revising domestic laws against terrorism, changes in immigration regulations, to expanding intelligence powers. How the USA PATRIOT Act Affects Privacy First of all, PATRIOT impacts information and communications privacy by revising how criminal investigations can employ surveillance. U.S. law has established four basic ways that investigative agencies can conduct surveillance on people living in the United States.
The proof standards and procedures for these instruments vary depending upon whether they are executed by a domestic law enforcement agency (e.g., the FBI) or a foreign intelligence agency. For domestic cases, there must be a presumption of "criminality." This means that the individuals in question can be reasonably suspected of involvement in the commission of a crime. On the other hand, U.S. law allows the surveillance of individuals living in the U.S. by foreign intelligence agencies only if they are identified as a "foreign power" or "agents of a foreign power." Wiretaps and search warrants executed by domestic law enforcement agencies are subject to Fourth Amendment protection and thus have a more stringent proof standard. But, the Fourth Amendment does not apply to wiretaps and search warrants employed by foreign intelligence. Consequently, they are easier to obtain and allowed greater latitude in their execution. The PATRIOT Act affects the acquisition and use of these investigative instruments in significant ways for both domestic and foreign intelligence agencies. The scope and application of interception orders are affected in several ways. Computer hackers who trespass on computer systems are now subject to intercept orders. On the other hand, voicemail is no longer subject to intercept orders; only a search warrant is needed. PATRIOT authorizes intercepts by foreign intelligence on any phones or computers that the suspect might use. Consequently, the foreign intelligence agency could require anyone to assist them in the wiretap. These "roving wiretaps" do not have to specify the names of the individuals required to assist the agency either. Prior to PATRIOT search warrants had to be obtained in the judicial district where they would be served. PATRIOT permits certified warrants that apply to outside districts as well. For example, a search warrant for stored e-mail communications could be served at any service provider in the country without explicitly naming them in the order. PATRIOT also creates so-called "sneak-and-peak" warrants--that is, warrants that permit clandestine entry and search conducted prior to notifying the searched individual. The bill expands pen register and trace orders to include electronic communications (e-mail) and Internet usage. Examining the contents of e-mails is not authorized by these orders; source, destination, and subject information is fair game though. Internet usage includes the Web sites and pages visited by an individual. PATRIOT also authorizes nationwide execution of court orders for pen registers and trace orders. The USA PATRIOT Act impacts information privacy rights in other dimensions. Consider, for example, the effects of its revisions to federal laws on money laundering. Laundering money is the movement of cash and goods that are derived from or contribute to criminal activity. Banks and financial institutions have long been required to cooperate with government investigations of suspicious financial dealings. PATRIOT widens the realm. First, banks and financial institutions are required to increase their reporting of financial transactions--especially those involving foreign clients. Likewise, in the past "nonfinancial" businesses were required to report cash transactions over $10,000 to the IRS. PATRIOT now requires them also to report these transactions to the Financial Crimes Enforcement Network of the Treasury. In short, the financial and business industries have been enlisted to keep tabs on their clients without their express knowledge. For example, banks must cross check all new clients with a list of suspected terrorists and criminals. Furthermore, they must investigate current clients to ascertain whether they have any financial dealings with individuals on the suspect list. Ostensibly, these regulations are intended to make investigations of terrorist activities more effective. However, in PATRIOT's first year, the Treasury Department reported that over 6,000 financial records were subpoenaed for investigations involving suspected money laundering. Yet, over two-thirds were cases with no terrorist connection. Many of these investigations were done by federal agencies other than the FBI too, e.g., the Postal Service and the IRS. A recent amendment to an Intelligence budget bill has extended PATRIOT's reach even further by redefining what constitutes a "financial transaction" and "financial institution." As a result, all manner of personal business and financial records may be easily obtained by investigative agencies. The USA PATRIOT Act also gives the Attorney General the power to require educational institutions to disclose educational records that are deemed relevant to an investigation of terrorist activity. PATRIOT prescribes that many of these measures will automatically expire in 2006 unless Congress renews them. Internet usage is not subject to this sunset provision though. Interestingly, more recent proposals have sought to extend or expand some of the time-limited provisions even further. Permanent or not, the USA PATRIOT Act has changed the legal landscape for privacy rights. Federal agencies now have both the means and the powers to gather and collect a great deal of information about individuals living in the U.S. They may engage in these investigations without the knowledge of the individuals in question and with few judicial checks and balances. The government argues that it must take extraordinary measures to deal with current threats of terrorism. On the other hand, civil libertarians object to PATRIOT's significant potential for abuse. Whether PATRIOT serves our national security and the greater good is yet to be proven. And, whether it does open the door for governmental abuse remains an unknown as well. 1. What is privacy? Why is it important? Identify several contexts for privacy. 2. To what extent (if at all) should these forms of personal communication be considered private: (face-to-face) conversations? telephone conversations (wired and/or wireless)? letters and correspondence? e-mails? 3. To what extent (if at all) should these forms of personal information be considered private: financial records (financial transactions, bank accounts, indebtedness)? credit ratings? health and medical records? educational records? employment records (salary, performance evaluations, etc.)? criminal records? 4. Are e-mails and Internet usage different in any significant ways compared to telephone usage? Consider the following case. An investigating agency has secured trace-and-trap orders for your telephone (phone numbers of callers and people you called), your e-mails (source, destination, and subject information), and your Internet usage (the sites and pages that you have visited on the Web). Would the extent and quality of information be the same in all cases? Would you consider any of these to be more invasive than the rest? Explain. 5. What are "roving" wiretaps? How do they compare/contrast with conventional intercept orders? What sort of checks and balances protect us from their abuse? Explain. 6. What are "nationwide" warrants? How do they compare/contrast with conventional search warrants? What sort of checks and balances protect us from their abuse? Explain. 7. What are "sneak and peek" warrants? How do they compare/contrast with conventional search warrants? What sort of checks and balances protect us from their abuse? Explain. 8. Suppose that the federal government was permitted to gather and collect personal communications and information on all people living in the U.S. without their express consent or knowledge. This would include telephone, postal, e-mail communications, and Internet usage, financial records, health and medical records, educational records, employment records, etc. Two questions:
9. Critics of the USA PATRIOT Act offer two types of objections. Some argue against its legitimacy. They question whether it is Constitutional and consistent with the traditions of rights and freedoms in a democratic society. Some question its efficacy. Constitutionality aside, will it enable law enforcement to combat the terrorist threat effectively. Consider each of these perspectives. What are your views? Center for Technology and Democracy
©Abernethy and Allen, 2004. |
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