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
New Title III Predicate 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.
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 • Convey false alarm
• Biological attack or regarding offenses
other destructive • Attempt to violate this
device on mass section
transit • Threaten or conspire
• Impair signals to violate this section
• Endanger operators
• Act with intent to kill
on mass transit
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