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Behind the USA Patriot Act
By Ann Harrison
Editor’s note: This is the first
in a series of two articles on the USA Patriot Act by Ann
Harrison. The second will explore what is known about the
identity and conditions of the 1,147 people detained in the
anti-terrorism investigation.
Since launching their no-holds-barred investigation
into the Sept. 11 attacks, the FBI has released an astonishing
amount of information about the men who they have identified
as the hijackers. There are photographs of them passing through
airport security and peering into ATM machines. The FBI has
records of their cell phone calls, their cash transfers, air
travel, credit card purchases, car rentals, email messages
and hotel bills. Now that the hunt is on for accomplices who
could be planning more attacks, law enforcement officials
have sought the legal authority to collect even more information
about the minutiae of daily life. The new anti-terrorism law
signed into law on Oct. 26 grants law enforcement authorities
sweeping new surveillance powers that are not limited to terrorism
investigations but also apply to criminal and intelligence
investigations. The new law, known as the USA Patriot Act,
reaches into every space that Americans once imagined was
private. For instance, police can now obtain court orders
to conduct so called “sneak and peak” searches of
homes and offices. This allows them to break in, examine and
remove or alter items without immediately, if ever, presenting
owners with a warrant detailing what they were entitled to
do and where.
This seismic shift in the government’s
power of search and seizure also extends to the examination
of records. Authorities can browse medical, financial, educational
or even library records without showing evidence of a crime.
The law overrides existing state and federal privacy laws
if the FBI claims that the information is connected to an
intelligence investigation. In addition, credit reporting
firms like Equifax must disclose to the FBI any information
that agents request in connection with a terrorist investigation,
without the need for a court order. In the past, this was
only permitted in espionage cases. Biometric technology, such
as fingerprint readers or iris scanners, will become part
of an “integrated entry and exit data system” to
identify visa holders entering the United States. Face recognition
technology is now being installed in several U.S. airports.
The legislators who rushed these provisions through the House
and Senate say that law enforcement authorities need this
data to help track down terrorists and prevent future attacks.
“We were able to find what I think is the appropriate
balance between protecting civil liberties, privacy and ensuring
that law enforcement has the tools to do what it must,”
said Senate Majority Leader Thomas Daschle (D-S.D.) in a statement
following the passage off the bill.
But civil liberty groups have been alarmed
by this legislation since it started whisking its way through
Congress. Jim Dempsey, deputy director of the Washington D.C.-based
Center for Democracy and Technology (CDT), says he is particularly
concerned about the provision in the law that allows the FBI
to share with the CIA information collected in grand jury
investigations. The 1947 National Security Act states that
the CIA should have no domestic police or subpoena powers.
But Dempsey says CIA agents could now use their close relationship
with the FBI to essentially fill in subpoenas provided by
prosecutors. “To do this with no prior judicial approval
is a fundamental change in the way we have set up our police
agencies and set them apart from our foreign intelligence
agencies,” said Dempsey. “And it was done with very
little debate.”
Legislators who voted for the USA Patriot
Act pointed out that the most controversial surveillance sections
will would expire in 2005.
Senate Judiciary Committee chairman Sen. Patrick
Leahy (D-Vt.) announced that a four-year expiration date “will
be crucial in making sure that these new law enforcement powers
are not abused.”
Dempsey says the CDT is hoping there will
be a Congressional review prior to any extension of the provisions.
But he, and many others, have pointed out that these so-called
“sunset provisions” do not apply to the sharing
of grand jury information, giving the CIA the permanent benefits
of grand jury powers.
The so-called “sneak and peak searches”
are permanent as well. And further, the sunset provisions
do not apply to ongoing cases. This means that intelligence
investigations, which often run for years, would continue
to operate under the law even if provisions are not extended
past 2005. Also exempted are any future investigations of
crimes that took place before this date.
Internet surveillance via “pen register”
devices, which capture phone numbers dialed on outgoing telephone
calls, and “trap and trace” devices, which capture
the numbers of incoming calls, are also exempt from the sunset
provisions. These orders were originally used to provide investigators
with telephone numbers dialed by suspects. They can now be
used to monitor email addressing information and Web pages
visited, in some circumstances without judicial oversight.
Investigations approved by the secretive FISA intelligence
court would also not require notification. Lee Tien, senior
staff attorney for the San Francisco-based Electronic Frontier
Foundation, notes that this type of surveillance requires
mere certification with no evidence that the person being
monitored is involved in criminal conduct or is a suspected
member of a terrorist organization. While this online surveillance
requires a judge’s approval, the law mandates that the
judge must approve every request and is not required to evaluate
how the order was carried out. Tien said he will be working
with other online civil liberties groups to get the government
to notify targets of pen/trap surveillances and increase judicial
oversight. “The potential for pen/trap surveillance on
the Internet is enormous,” says Tien.
The new law also permits any U.S. attorney
or state attorney general to order the installation of the
FBI’s Carnivore Internet surveillance system, which also
has the capacity to capture the contents of email messages.
The agency says the public must trust that investigators will
not review this information.
Unlike trap and trace orders, Carnivore requires
that investigators set up an audit trail which includes what
information was gathered, by whom and when. But Tien notes
the court is not required to review the information and make
sure that it complies with the terms of the certification.
“No one has that oversight role,” says Tien.
While the government has the power to snoop,
citizens who engage in similar activities now fall under the
government’s new definition of terrorists. The current
definition of terrorism has been expanded to include hacking
into a U.S. government computer system or breaking into and
damaging any Internet-connected computer. Prison terms of
between five to 20 years can now be used to prosecute the
new crime of “cyberterrorism,” which covers hacking
attempts causing $5,000 in aggregate value in one year, damage
to medical equipment or injury to any person.
Even Internet Service Providers, universities
and network administrators are authorized under the new law
to conduct surveillance of “computer trespassers”
without a court order. The new law compels any Internet provider
or telephone company to turn over customer information, including
phone numbers called, without a court order, if the FBI claims
that the records are relevant to a terrorism investigation.
The company is forbidden to disclose that the FBI is conducting
an investigation, has immunity to provide any sensitive data
and is not bound by statutory rights to suppress the information.
“There is no incentive for anyone to know about it, or
challenge it or rein it in,” says Dempsey. Prior to the
passage of the USA Patriot Act, Laura Murphy, Director of
the ACLU Washington National Office, wrote letters to the
House and Senate warning that the bill would give enormous
power to the executive branch unchecked by meaningful judicial
review. “Included in the bill are provisions that would
allow for the mistreatment of immigrants, the suppression
of dissent and the investigation and surveillance of wholly
innocent Americans,” said Murphy.
Civil liberties groups point out that the
government has a history of launching investigations against
political dissidents. These include the FBI investigations
of Martin Luther King and other civil rights leaders in the
1960s, illegal spying on anti-war protesters in the 1960s
and 1970s and surveillance on the sanctuary movement that
provided asylum for those fleeing Central American death squads
during the 1980s.
Attorney General John Ashcroft has brushed
off these concerns and issued a directive to law enforcement
investigators, urging them to aggressively use the new powers,
which he says will be used to launch a “law enforcement
campaign.”
Steve Shapiro, national legal director for
the ACLU, says Congress should use its unique subpeona power
to get information about investigations and exercise its oversight
authority on investigators. “Congress has given them
these powers,” said Shapiro. “And it has a big responsibility
to make sure these powers are not abused.”
Tien said the EFF would also be actively opposing
calls for national ID cards, for biometric systems and for
mandatory record keeping by ISPs, which has already been discussed
seriously in Europe. Dempsey says the CDT is concerned about
the possibility that because the FBI has not been able to
get to the core of the suspected terrorist cells, they will
cast an even wider net. Cut loose from past standards and
judicial controls, investigators, he fears, will collect more
information on innocent people and be distracted from the
task of actually identifying those who may be planning future
attacks.
“That is where the law allows them to
take it,” says Dempsey. “And that is bad for civil
liberties and bad for anti-terrorism investigations.”
5 November 2001
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