The USA PATRIOT Act

Session 10

YSU Weapons of Mass Destruction Course

The Acronym

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism

What Changed?

• Criminal Investigations

• Foreign Intelligence Investigations

• FISA

• Money Laundering

• Alien Terrorists and Victims

• Computer Security

• Infrastructure Protection

What Changed?

• Electronic Commerce

• Electronic Government

• Internet Privacy

Criminal Investigations

• Surveillance

• Interpretations of 4th Amendments

• Tier 1 Considerations– Protects Private Conversations– Berger v. New York (1967)– Katz v. United States (1967)– Smith v. Maryland (1979)

• Phone records not protected• Not reasonable to expect protection

Response to Berger and Katz

• Omnibus Crime Control & Safe Streets Act– Title III

• Prevents eavesdropping on

–Telephone conversations

–Face-to-face conversations

–Computer and other electronic communications

Title III

• Approval for surveillance – Approved by senior DOJ official– Must seek court order allowing surveillance– Must be for listed offense (predicate offense)

Some Predicate Offenses

Sabotage of nuclear facilities or fuel, espionage, protection of trade secrets, sabotage, treason, riots, malicious mischief, destruction of vessels, piracy, unlawful payments to labor organizations, bribery of public officials and witnesses, any offense involving murder, kidnapping or robbery, bribery of bank officials, bribery in sporting contests, unlawful use of explosives, concealment of assets, transmission of wagering information, escape, influencing or injuring an officer, witness or juror, obstruction of criminal investigation, obstruction of state or local law enforcement, presidential or presidential staff assassination, kidnapping or assault, interference with commerce by threats or violence, foreign travel or transportation in support of racketeering, use of interstate commerce facilities in the commission of murder for hire, influencing an employee benefit program, laundering of monetary instruments, theft of interstate shipment, fraud by wire, radio or television, bank fraud, exploitation of children, transportation of stolen property, aircraft part fraud, threatening or retaliating against a Federal official, mail fraud, transactions with nuclear material, wrecking trains, false documents violations, drugs, forgery, aircraft piracy, aircraft parts fraud.

The Act Adds Other Offenses

cyber crimes, terrorist acts of violence committed against Americans overseas, use

of weapons of mass destruction, acts of terrorism transcending international

boundaries, financial transactions with countries which support terrorists, providing

material support to terrorists, providing material support to terrorists.

New Title III Predicate Offenses

Court Order

• Describes duration

• Scope of surveillance

• Types of communications which may be seized

• Court notifies parties after expiration of court order

Not Protected Under 4th

• Telephone Records

• E-Mail Held in 3rd Party

• May be Viewed For Any Criminal Case– Subpoena– Court Order– Warrant– Protects Companies Who Cooperate– Notify the Subscriber Later

Stored E-mails >180 Days

Access with a warrant but they do not have to tell the subscriber. Plus the jurisdiction is all encompassing. So a court in New York can compel Yahoo to open their e-mail system to investigators in Northern California.

And that includes stored voicemail as well.

Trap & Trace, Pen Registers

• Secret Caller ID• Only Tells Who is Calling Who• Participant Need Not be Told• Court Order – Not restrictive• Now applied to header and subject lines

of e-mail.

Foreign Intelligence Investigations

In the past, there was always question in criminal trials where information used against the defendant was gained through the use of a Foreign Intelligence Investigation because the rules are less stringent and not covered under Title III.

i.e. Request for foreign surveillance was not covered under the predicate offense clause.

FISA

• Foreign Intelligence Surveillance Act

• FISA Court Hears Requests for Surveillance Warrants

• Previously “the purpose of the surveillance”

• After the Act “a purpose of the surveillance”

• Intelligence Law Enforcement

The Act Allows

• Roving surveillance (court order need not state a listening instrument, target facility)

• FIA Court 7 to 11 Judges• “a significant reason” vs. “the reason”• Pen registers for e-mail• Tangible items of customers now

searchable (lockers, rental companies, hotels)

• No FISA just for 1st Amend. exercise

Protective Measures

• Safeguard 1 – Abuse Prevention

• Safeguard 2 – Protects Cooperators

Abuse Prevention

• Expiration – 12-31-2005• Previously Abuses, You Sued the Agent

– Punitive (possible) + Reasonable Atty Fee

• Today, You Can Recover– In FISA or Title III Violations no less than

$10K

• DOJ Inspector General– Must receive complaints of C.L. infringements

by DOJ staff

What Expires on 12-31-2005?

• Sharing of Grand Jury Information

• Seizure of Stored Voice Mail

• Seizure of Provider Customer Records

• Access to Cable Co. Records

• Sneak and Peek

• Pen Registers and Trap and Trace

• Assistance to Law Enforcement

Protection of Cooperators

• Immunity from prosecution of service providers who preserve records until an order can be filed.

• Allows disclosure of account information in emergency situation (prior allowed content but not records)

• Compensates service providers for pen register and trace installation modification.

Disclosure of Grand Jury Information

• Allowance of disclosure of information. . .– To any federal law enforcement , intelligence,

protective, immigration, national defense or national security” officer to assist in the performance of his duties.

Money Laundering

• On Wednesday We Will Have Guest– Mr. Chris Garvin of Brennan Financial

Alien Terrorists and Victims

• Border Protection

• Detention and Removal

• Victims of 9-11

Border Protection

• Triple border patrols, customs and INS on Northern Border + equip upgrades

• Improve fingerprinting and develop biometric systems

• Closer monitoring of student visas

• Give airlines lists of suspected terrorists

• State Dept. shares info on gun runners, terror, drugs, slave trade

Detention and Removal

• If you were inadmissible when you came in – you are out

• If you engage in terrorist activity – you are out.

• Terrorism categories expanded to deny entry– Engaging in, representing organization,

espousing terror, being a spouse or child associated w/terror, intending to engage in activities that could endanger Americans

Engaging in Terror

• Soliciting on behalf of terror• Providing material to a terror organization• Recruiting on behalf of terror• Using place or prominence to espouse

terror• AG may detain for 7 days

– Initiate to remove or release– If held – review every 6 months to determine if

release would threaten national security.

Federal Offense – Life in Prison

• Attack mass transit• Biological attack or

other destructive device on mass transit

• Impair signals• Endanger operators• Act with intent to kill

on mass transit

• Convey false alarm regarding offenses

• Attempt to violate this section

• Threaten or conspire to violate this section

Harboring

• Harboring a terrorist– $250,000 fine up to 10 years

• Predicate offense list– Destruction of aircraft, CBRNI, bombing fed.

bldgs, destruction of energy facilities, international terror, nuclear sabotage, air piracy.

– Fines increased for dozens of other offenses

Other Changes

• Rewards

• Expands Posse Comitatus

• Authorizes “sneak and peek”

• Nationwide warrants

• Eases govt access to confidential info

• AG may collect DNA on terror criminals

• Statute of limitations extended for terror

“Sneak and Peek”

• 4th Amendment– Requires officer to knock and announce

purpose before executing warrant

• Rule 41 – Fed. Rule of Criminal Procedure– May enter w/o presence but must leave copy

of warrant and what was taken.

• Sneak and Peak

“Sneak and Peek”

Authorizes officers to secretly enter, either physically or virtually’ conduct a search, observe, take measurements, conduct examinations, smell, take pictures, copy documents, download or transmit computer files and depart without taking any tangible evidence or leaving notice of their presence. They are told at a later date.

But 4th Amendment does recognize “exigent circumstances” where compliance will lead to flight, destruction of evidence or may endanger officers.

Coming Wednesday

• Computer Security

• Infrastructure Protection

• Electronic Commerce

• Electronic Government

• Internet Privacy