The USA Patriot Act

Aaron Nishina Aaron Nishina

Jon GerardJon Gerard

Ricky Sood Ricky Sood

Formal definition: the Uniting and Strengthening Formal definition: the Uniting and Strengthening America by Providing Tools Required To America by Providing Tools Required To Intercept and Obstruct Terrorism (USAPA)Intercept and Obstruct Terrorism (USAPA)

The USA Patriot Act

History Behind The Computing Policies of the USAPA Attorney General John AshcroftAttorney General John Ashcroft His views on cyber-crime in the United His views on cyber-crime in the United

States pre-9/11States pre-9/11 May 22, 2001May 22, 2001

The Speech

Terrorism In the U.S.

Domestic vs. International Domestic vs. International terrorismterrorism

The need to fight terrorismThe need to fight terrorism Relation to computing Relation to computing The government’s solutionThe government’s solution

What is the Patriot Act?

Anti-terrorism legislative document Anti-terrorism legislative document Addresses cyber crimes issuesAddresses cyber crimes issues Fundamental privacy vs. security issuesFundamental privacy vs. security issues Creates new laws / Appends Old LawsCreates new laws / Appends Old Laws

Some of the Major Provisions Court subpoena no longer needed for ISP’s to give Court subpoena no longer needed for ISP’s to give

information information Computer crimes are now “terrorist” offensesComputer crimes are now “terrorist” offenses ISP’s have to give up more user information ISP’s have to give up more user information Court orders no longer needed for monitoring Court orders no longer needed for monitoring

suspects in computer crimes casessuspects in computer crimes cases Appends the Computer Fraud and Abuse ActAppends the Computer Fraud and Abuse Act Major changes at Libraries in the U.S.Major changes at Libraries in the U.S. Development of electronic crime task force within Development of electronic crime task force within

the U.S. Secret Servicethe U.S. Secret Service Implementation of the Carnivore Tracking DeviceImplementation of the Carnivore Tracking Device

Who Are the Stakeholders?

Computer users in the publicComputer users in the public Internet Service ProvidersInternet Service Providers LibrariesLibraries Law EnforcementLaw Enforcement TerroristsTerrorists

Advocates vs. Opponents

TH E P A TR IO T A C T

L aw E n fo rcem en tG overn m en t

A tto rn ey G en era l Joh n A sh c ro ftP o lit ica l C on serva tives

S U P P O R TE R S

L ib erta rian sP rivacy A d voca tes

O P P O N E N TS

Ethical and Legal Questions about the USAPA

The USAPA affects policies regarding The USAPA affects policies regarding wiretapping and warrantswiretapping and warrants

As is common with such cases, it is asked As is common with such cases, it is asked “Do these new changes violate “Do these new changes violate Constitutional (Legal) Rights?”Constitutional (Legal) Rights?”

Many people have strong reservations about Many people have strong reservations about the need for privacy. “Do these new the need for privacy. “Do these new policies violate the right to privacy?”policies violate the right to privacy?”

Ethical and Legal Questions

Debate has arisen over usefulness vs. Debate has arisen over usefulness vs. legitimacylegitimacy

No cases has challenged the computer No cases has challenged the computer provisions in the USAPA yetprovisions in the USAPA yet

Biggest concerns: email and information Biggest concerns: email and information handlinghandling

Fourth and Ninth Amendments in QuestionFourth and Ninth Amendments in Question

The Right to Privacy

Not expressly given in the ConstitutionNot expressly given in the Constitution Fourth Amendment is a compelling argument Fourth Amendment is a compelling argument

for privacy because it guarantees the right to be for privacy because it guarantees the right to be secure in one’s own person, house, and paperssecure in one’s own person, house, and papers

Fifth Amendment protects people from Fifth Amendment protects people from divulging certain informationdivulging certain information

Ninth Amendment grants rights not expressly Ninth Amendment grants rights not expressly given in the Constitutiongiven in the Constitution

The Right to Search only with Probable Cause

Email interception has been treated in the Email interception has been treated in the USAPA as similar to wiretappingUSAPA as similar to wiretapping

Fourth Amendment requires probable cause for Fourth Amendment requires probable cause for the issue of a warrantthe issue of a warrant

In In Katz vs. U.S.Katz vs. U.S. 1967, the Supreme Court stated 1967, the Supreme Court stated that the Fourth Amendment protects people, not that the Fourth Amendment protects people, not places. What a person seeks to keep private is places. What a person seeks to keep private is constitutionally protected (phone conversations constitutionally protected (phone conversations included)included)

To reiterate:

Who are the major sides in the argument for Who are the major sides in the argument for and against the Patriot Act?and against the Patriot Act?

U.S. Government offices such as the U.S. Government offices such as the Whitehouse, CIA, FBI, and Dept. of Justice Whitehouse, CIA, FBI, and Dept. of Justice are in favor.are in favor.

Civil Liberties Groups such as the ACLU, Civil Liberties Groups such as the ACLU, and Electronic Frontier Foundation and Electronic Frontier Foundation (EFF)are against it.(EFF)are against it.

Analysis of the USAPA by President Bush

““Surveillance of communications is an Surveillance of communications is an essential tool to pursue and stop terrorists. essential tool to pursue and stop terrorists. The existing laws were written in the era of The existing laws were written in the era of rotary telephones. This bill met with an rotary telephones. This bill met with an overwhelming support in Congress because overwhelming support in Congress because it upholds and respects civil liberties.it upholds and respects civil liberties.

Analysis of the USAPA by the EFF

““It seems clear that the vast majority of It seems clear that the vast majority of sections included have not been carefully sections included have not been carefully studied by Congress, nor was sufficient studied by Congress, nor was sufficient time taken to debate it or hear testimony time taken to debate it or hear testimony from experts. The civil liberties of ordinary from experts. The civil liberties of ordinary Americans have taken a tremendous blow”Americans have taken a tremendous blow”

Analysis of the USAPA by the Congressional Research Service

““Critics of the USAPA have suggested that it Critics of the USAPA have suggested that it may have gone too far. The Act itself may have gone too far. The Act itself responds to some of these reservations. responds to some of these reservations. Many of the wiretapping amendments Many of the wiretapping amendments sunset on December 2005. The Fourth sunset on December 2005. The Fourth Amendment protects private conversations, Amendment protects private conversations, but it does not cloak even highly personal but it does not cloak even highly personal information [such as ISP records].”information [such as ISP records].”

Case Study: Zacarias Moussaoui

How would the USAPA have affected the How would the USAPA have affected the events leading up to 9/11?events leading up to 9/11?

In specific, we look at computer-related In specific, we look at computer-related provisions in the USAPAprovisions in the USAPA

We chose to study the only case involving We chose to study the only case involving someone on trial for the 9/11 attacks: someone on trial for the 9/11 attacks: Zacarias MoussaouiZacarias Moussaoui

Case Study: Zacarias Moussaoui - Who was he?

A 33 year old French-born Moroccan with a A 33 year old French-born Moroccan with a history of Muslim radicalismhistory of Muslim radicalism

Entered the U.S. February 2001 and Entered the U.S. February 2001 and immediately began learning how to flyimmediately began learning how to fly

Studied at the Pan Am Flying Academy in Studied at the Pan Am Flying Academy in Eagan, MinnesotaEagan, Minnesota

He paid for his lessons with about $8000 in He paid for his lessons with about $8000 in cashcash

Case Study: Zacarias Moussaoui - Who was he?

Instructors became suspicious because it Instructors became suspicious because it seemed that Moussaoui was most concerned seemed that Moussaoui was most concerned with with steeringsteering aircraft, and not landing or aircraft, and not landing or taking offtaking off

FBI detained Moussaoui on August 17 and FBI detained Moussaoui on August 17 and he is now charged with 6 criminal counts he is now charged with 6 criminal counts concerning 9/11.concerning 9/11.

Case Study: Zacarias Moussaoui

At the time of his arrest, the FBI found At the time of his arrest, the FBI found flight manuals for a Boeing 747, 2 knives, flight manuals for a Boeing 747, 2 knives, fighting shields and a laptop computerfighting shields and a laptop computer

The FBI was also notified by French The FBI was also notified by French Intelligence that Moussaoui was suspected Intelligence that Moussaoui was suspected of involvement with Islamic extremistsof involvement with Islamic extremists

Case Study: Zacarias Moussaoui - FBI Requests a warrant

The FBI requested a warrant under the The FBI requested a warrant under the Foreign Intelligence Surveillance Act Foreign Intelligence Surveillance Act (FISA) to search his computer(FISA) to search his computer

Denied due to insufficient evidence that Denied due to insufficient evidence that Moussaoui was involved with terrorists.Moussaoui was involved with terrorists.

It turns out that information regarding the It turns out that information regarding the spraying of pesticides from planes was spraying of pesticides from planes was among the content on his computer.among the content on his computer.

Case Study: Zacarias Moussaoui - The Relationship to the USAPA

How does this case relate to the Patriot Act?How does this case relate to the Patriot Act? The requested for a warrant was under The requested for a warrant was under

provisions by the FISA. These provisions provisions by the FISA. These provisions have been updated with the USAPAhave been updated with the USAPA

There are additional provisions in the There are additional provisions in the USAPA alone that could have allowed a USAPA alone that could have allowed a warrant to be issuedwarrant to be issued

Case Study: Zacarias Moussaoui - Details We are Interested In.

Moussaoui was a Moussaoui was a suspected terrorist by suspected terrorist by French IntelligenceFrench Intelligence

He was suspected by He was suspected by the FBI in Minnesota the FBI in Minnesota to be a terroristto be a terrorist

Case Study: Zacarias Moussaoui - The act of getting a warrant

FISA is changed by USAPA to state that FISA is changed by USAPA to state that terrorism only needs to be a “significant terrorism only needs to be a “significant purpose for an investigation” ; this is less than purpose for an investigation” ; this is less than “probable cause”“probable cause”

Other USAPA provisions could also have been Other USAPA provisions could also have been used to obtain a warrantused to obtain a warrant

Case Study: Zacarias Moussaoui - What can the FBI do with that warrant?

Under Section 219, a FISA warrant now Under Section 219, a FISA warrant now entitles investigators the ability “to coordinate entitles investigators the ability “to coordinate efforts to investigate potential hostile attacks”efforts to investigate potential hostile attacks”

Would have allowed for the searching of his Would have allowed for the searching of his computercomputer

This is how computers are very much a part of This is how computers are very much a part of this case!this case!

Case Study: Zacarias Moussaoui - What was on his computer?

Pesticide and Crop Dusting InformationPesticide and Crop Dusting Information In retrospect, relevant because of Anthrax In retrospect, relevant because of Anthrax

AttacksAttacks What is important is the What is important is the potentialpotential information! information!

Case Study: Zacarias Moussaoui - What was on his computer?

Ethical: Overall good to American people is Ethical: Overall good to American people is obviousobvious

Unethical action of invading Moussaoui’s Unethical action of invading Moussaoui’s privacy relatively minor?privacy relatively minor?

What is important is the What is important is the potentialpotential information information

Case Study: Zacarias Moussaoui

Benefits of USAPA seem clearBenefits of USAPA seem clear Disadvantages seem to be minorDisadvantages seem to be minor We need to examine other cases regarding the We need to examine other cases regarding the

USAPAUSAPA

Case Study 2: Internet Service Providers Part of Corporate AmericaPart of Corporate America How does the USA Patriot Act affect them? How does the USA Patriot Act affect them?

(Sec. 212)(Sec. 212) Law Enforcement’s POVLaw Enforcement’s POV Civil Libertarian’s POVCivil Libertarian’s POV Pro’s & Con’sPro’s & Con’s Ethical QuestionsEthical Questions

ISPs: Part of Corporate America

They do not generally engage in criminal or They do not generally engage in criminal or terrorist activityterrorist activity

There are large and small ISPs alike and the There are large and small ISPs alike and the effects on both must be taken into account.effects on both must be taken into account.

The financial impacts on both must be taken The financial impacts on both must be taken into accountinto account

How does the USA Patriot Act affect ISPs? Allows ISPs to “voluntarily” disclose Allows ISPs to “voluntarily” disclose

electronic communications electronic communications In the event immediate danger or death or In the event immediate danger or death or

serious bodily injury to a person requires serious bodily injury to a person requires such disclosure.such disclosure.

Law Enforcement’s POV Previous Law was inadequatePrevious Law was inadequate No provisions allowing providers to disclose

customer records or communications in emergencies

Did not expressly permit a provider to voluntarily disclose “non-content” records to law enforcement for purposes of self protection

Providers could disclose the content of communications for this reason

What Does “Non-Content” Mean

It includes records of session times and durations, temporarily assigned network (IP) addresses; means in sources of payments, including credit card or bank account numbers

Civil Libertarians POV

It allows ISPs to voluntarily handover all "non-content" information to law enforcement with no need for a court order or subpoena

It expands the records that the government may seek with a simple subpoena (no court review required)

i.e. “non-content” Information

Pro’s ISPs may now authorize law enforcement to intercept a

computer trespasser’s wire or electronic communications

No need for law enforcement to first obtain a court order before performing these surveillance activities

Computer system operators can now obtain assistance from law enforcement when they are attacked by trespassing “hackers”

The DOJ analogizes this new power to a homeowner calling the police

Con’s CSPs may now voluntarily disclose

information about users to law enforcement May now voluntarily disclose to the

government user communications or customer records

Financial burden on ISP / Additional Man power is uncertain

Ethical Questions

Is it ethical to allow ISPs to make the Is it ethical to allow ISPs to make the determination of whether or not there is determination of whether or not there is an emergency involving immediate danger of death or serious physical injury to any person ?

Ethical Questions Continued

Is it ethical to Is it ethical to impose any additional technical obligation or requirement on a ISP which may impact it financially?

Ethical Questions Continued

The USA Patriot Act allows for ISPs to “voluntarily” disclose information to law enforcement, how will the public view the ISP who “might” have had information which could have prevented a terrorist act?

The FBI has recently come under fire for this exact situation

Case Study 3: The General Computing Public A Broader OverviewA Broader Overview

Internet UsersInternet Users StudentsStudents Software PiracySoftware Piracy

Internet Users

Most businesses and home computer users as well, require an internet connection

We are the minority of the Computing Public Most of the general computing is weary of the

security of the internet Anything that affects an ISPs ability to function

also impacts the general computing public

Pro’s

The easy answer…! The easy answer…! Most will not notice any differenceMost will not notice any difference ISPs able to provide better service to their

customers

Con’s

The easy answer…!The easy answer…! More innocent victimsMore innocent victims ISPs unable to provide adequate service to

their customers

Ethical Questions

Is it ethical that the USAPA makes law Is it ethical that the USAPA makes law enforcements job of apprehending criminals enforcements job of apprehending criminals easier at the cost of affecting a greater easier at the cost of affecting a greater number of innocents?number of innocents?

Ethical Questions Continued

Is it ethical that the USAPA puts some of Is it ethical that the USAPA puts some of the burden of this monitoring on ISPs?the burden of this monitoring on ISPs?

If one ISPs PR is damaged due to this…If one ISPs PR is damaged due to this… Could lead to a cascading effect among the

privacy policy of ISPs affecting many internet users.

Students

A large population of the general A large population of the general computing public are studentscomputing public are students

Academic and personal records at can be Academic and personal records at can be accessed by law enforcementaccessed by law enforcement

This can be viewed in from two This can be viewed in from two perspectivesperspectives

Pro’s

Some of the hijacking terrorists were here Some of the hijacking terrorists were here on student visason student visas

Other immigrants illegally gain entrance to Other immigrants illegally gain entrance to the US under the guise of being studentsthe US under the guise of being students

If the FBI might be able to track those If the FBI might be able to track those terrorists through their student recordsterrorists through their student records

The president acknowledges this factThe president acknowledges this fact

Pro’s Continued

Statements made by the President regarding Statements made by the President regarding student visasstudent visas "We're going to start asking a lot of questions "We're going to start asking a lot of questions

that heretofore have not been asked" that heretofore have not been asked" "We're generous with our universities. We're "We're generous with our universities. We're

generous with our job opportunities and never generous with our job opportunities and never did we realize that people would take advantage did we realize that people would take advantage of our generosity to the extent they have”of our generosity to the extent they have”

Con’s

It is easier for law enforcement to gain It is easier for law enforcement to gain access to student recordsaccess to student records

There are already exceptions to FERPA There are already exceptions to FERPA (Buckley Act) for law enforcement to (Buckley Act) for law enforcement to access these records access these records

More students will be looked upon with More students will be looked upon with suspicion especially those with student suspicion especially those with student visasvisas

Con’s Continued

ACLU’s statements regarding student recordsACLU’s statements regarding student records ““allows law enforcement agencies to get access allows law enforcement agencies to get access

to private student information based on a mere to private student information based on a mere certification that the records are relevant to an certification that the records are relevant to an investigation”investigation”

““The bill omits good cause requirements and The bill omits good cause requirements and meaningful judicial review to protect against meaningful judicial review to protect against fishing expeditions that violate student privacy fishing expeditions that violate student privacy or investigation based upon racial profiling”or investigation based upon racial profiling”

Ethical Questions

Is it ethical to create new laws which impact Is it ethical to create new laws which impact the rights of others simply to make law the rights of others simply to make law enforcements job easier? enforcements job easier?

Especially if there are already avenues for Especially if there are already avenues for law enforcement to take.law enforcement to take.

Ethical Questions Continued

Law enforcement must inform you for Law enforcement must inform you for searches involving a search warrant, even if searches involving a search warrant, even if that notification is delayed.that notification is delayed.

Is it ethical to not inform students that their Is it ethical to not inform students that their academic records have been accessed by academic records have been accessed by law enforcement under court law enforcement under court order/subpoena?order/subpoena?

Software Piracy

Affects : A large population of the general Affects : A large population of the general computing publiccomputing public

New ease in MP3 and MPEG sharing New ease in MP3 and MPEG sharing technologytechnology

Availability of cracked software increasesAvailability of cracked software increases

Software Piracy

Tools such as Carnivore make monitoring Tools such as Carnivore make monitoring of internet users possibleof internet users possible

Certain keywords, ISP information release, Certain keywords, ISP information release, even possible acquaintance with a criminal even possible acquaintance with a criminal may lead to trackingmay lead to tracking

Software Piracy

Stakeholder: An average College StudentStakeholder: An average College Student May or may not be aware of legal issues May or may not be aware of legal issues

involvedinvolved Working on a report and Sharing MP3’s… Working on a report and Sharing MP3’s…

could it lead to an arrest?could it lead to an arrest? Are we biased in this case?Are we biased in this case? How likely is this case?How likely is this case?

Argument in Favor of Arrest

Unimportant if computer user is a terroristUnimportant if computer user is a terrorist Attorney General states “It is a Attorney General states “It is a

misconception that computer crime is not as misconception that computer crime is not as serious as traditional crime”serious as traditional crime”

Pirating Software hurts software Pirating Software hurts software companies/employeescompanies/employees

RIAA states that pirating music hurts RIAA states that pirating music hurts recording artistsrecording artists

Argument in Favor of Arrest, Continued Law enforcement officials should use every Law enforcement officials should use every

means necessary to catch crimesmeans necessary to catch crimes Thus, using the USAPA is justifiableThus, using the USAPA is justifiable The USAPA allows laws to be “up to date” The USAPA allows laws to be “up to date”

with current technologywith current technology Overwhelming support in Congress seems to Overwhelming support in Congress seems to

support that they deemed this legislation support that they deemed this legislation necessarynecessary

Argument Against Arrest

USAPA designed to “provide appropriate USAPA designed to “provide appropriate tools required to intercept and obstruct tools required to intercept and obstruct terrorism”terrorism”

USAPA is misleading and has a scope that USAPA is misleading and has a scope that extends beyond the traditional meaning of extends beyond the traditional meaning of terrorism - and that is wrongterrorism - and that is wrong

What is Terrorism…?What is Terrorism…?

Definition of Terrorism

FBI defines terrorism as “the unlawful use FBI defines terrorism as “the unlawful use of force or violence against persons or of force or violence against persons or property to intimidate or coerce a property to intimidate or coerce a government or civilian population”government or civilian population”

This seems reasonable.. But...This seems reasonable.. But...

Definition of Terrorism

USAPA defines terrorism differently.USAPA defines terrorism differently. Expands notion of “domestic terrorism”Expands notion of “domestic terrorism” Amends Computer Fraud and Abuse Act by Amends Computer Fraud and Abuse Act by

stating that computer crimes are “terrorist stating that computer crimes are “terrorist offenses”offenses”

Legal or not, is it ethical for an Anti-Legal or not, is it ethical for an Anti-Terrorism bill to do this?Terrorism bill to do this?

Final Thoughts

privacy vs safety

Patriot Act is definitely going to change Patriot Act is definitely going to change our livesour lives

It isn't clear just how yetIt isn't clear just how yet our goal in discussing the USAPAour goal in discussing the USAPA