COUNCIL ON GOVERNMENTAL RELATIONS 1200 New York Avenue, N.W. Suite 320 Washington D.C. 20005 (202) 289-6655/ (202) 289-6698 December 14, 2001 The USA Patriot Act was passed on October 25, 2001 and signed into law on the following day (P.L. 107-56). Although implementing regulations have not yet been prepared, the Act is effective now. Several provisions, in particular Sec. 817, affect university research. Universities need to inform themselves of the relevant provisions and assess their current exposure and risk. USA Patriot Act – Sec. 817 This Act contains several provisions that impact universities. The provision with the most immediate implications for research is Section 817, Expansion of the Biological Weapons Statute. The Antiterrorism Act of 1996 (P.L. 104-132) mandated CDC registration of laboratories that transfer or receive select biological agents (listed in section 72.6 of Title 42, Code of Federal Regulations). The Patriot Act amends the Biological Weapons statute (18 USC 175) and criminalizes possession of such materials of a type or in a quantity not reasonably justified by a bona fide research or peaceful purpose. In addition, it prohibits possession by “restricted persons” in a number of categories set forth in the Act. Below are suggested steps for universities to consider in assessing current risks with regard to the Patriot Act restrictions. A brief summary of other provisions in the Act with relevance to universities follows. Suggested Steps to Assess Current Risks: 1. Non-permanent residents from countries on the State Department list of countries that support terrorism are prohibited from transporting or possessing select biological agents. The seven countries currently on the State Department list are: Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. It would be prudent to determine if you have persons from any of those countries currently working with select agents. There are proposals in Congress to provide a waiver process for such individuals if it can be shown that they are not a threat, but at this time there are no exceptions to the prohibition. 2. Other “restricted persons” are also prohibited from transporting or possessing the select agents – this includes any individual who is: under indictment or has been convicted for a crime punishable by imprisonment for a term exceeding one year; a fugitive from justice; a user of illegal drugs; an alien illegally in the US; has been adjudicated as a mental defective or has been committed to any mental institution has been dishonorably discharged from the US Armed Services. While the penalties under the Act are for the individual, it is reasonable to expect that the government will, either with regulations issued under this Act or in other legislation currently being considered, hold institutions at least partly responsible for any violations. Pending Senate legislation would place responsibility for background checks of individuals with the Justice Department, but other legislation being considered in the House would direct the DHHS Secretary to establish “personnel screening protocols.” For now it would be prudent to assess current risks by: Reviewing the adequacy of policies and procedures for handling select agents. This should include evaluating your: inventory of biological materials- re-surveying faculty and laboratories to identify sites and individuals in possession of select agents. inventory tracking system authority to acquire materials authority to transfer materials transfer tracking system procedures for disposal training for laboratory personnel Evaluating the current management of compliance with regulations, policies, and procedures, using existing committees such as Institutional Biosafety Committee and Environmental Health and Safety Committee. Consider establishing a special committee to include senior financial and administrative officers and legal counsel. Assessing the adequacy of physical security of laboratories, including protocols for handling unauthorized access to materials/laboratories, and coordination with federal, state and local officials. If you currently conduct personnel background checks, do such checks cover all the areas listed above under the Act? If not, or if you currently do not perform background checks, seek advice from law enforcement officials on how such checks might be accomplished. Other Sections in the Act important for Consideration The Act provides for voluntary disclosure to law enforcement officials by providers of electronic communication services to the public, of communication contents or information about a customer or subscriber, if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury requires disclosure without delay. In addition, the Act (Title II) contains various provisions providing for additional law-enforcement surveillance authority with regard to the Internet and electronic communications. Another provision in the Act (Section 507) modifies the Family Educational Rights and Privacy Act (FERPA) and authorizes federal officials to obtain a court order for release of student records by educational institutions to aid in investigations of terrorist activity. Liability protection is provided for educational institutions that produce such records in accordance with the court order. These provisions may raise issues with regard to institutional privacy policies and other federal and state laws. Institutions may wish to designate a senior official(s) to handle law enforcement requests related to the Act, and ensure consultation with other appropriate campus legal and administrative officials. With regard to research, issues may arise with regard to proprietary content of electronic communications as well as privacy interests. Institutions need to balance these interests with the public interest and legal requirements, such as in considering voluntary disclosures of electronic communications under the emergency exception provision. With regard to student records, institutions need to assure awareness of FERPA requirements. Student information should not be disclosed unless the request includes a subpoena or court order (unless the institution determines that the emergency exception for voluntary disclosure applies). The Act also authorizes funds to speed up implementation of the Immigration and Naturalization Service (INS) ’s new foreign student tracking system (now known as the Student and Exchange Visitor Information System). If funds are appropriated for this purpose, implementation of the program on university campuses will be sooner than expected. Student fees are to provide the funds to administer the program after full implementation. Institutions need to have established procedures for handling requests from the INS for information about foreign students.