On our cover page you will now find these references to The Patriot Act:
house.gov
Acrobat viewer needed.
eff.org HTML the Act
eff.org EFF Analysis (Electronic Frontier Foundation)
The analysis by the Electronic Frontier Foundation looks like it is quite good. At their site you can find additional
information about the EFF's objectives.
Here is an EXAMPLE of the analysis which covers the Patriot Act.:
EFF Analysis Of The Provisions Of The
USA PATRIOT Act
That Relate To Online Activities (Oct 31, 2001)
Introduction
On October 26, 2001, President Bush signed the USA Patriot Act (USAPA) into law. With this
law we have given sweeping new powers to both domestic law enforcement and international
intelligence agencies and have eliminated the checks and balances that previously gave courts the
opportunity to ensure that these powers were not abused. Most of these checks and balances
were put into place after previous misuse of surveillance powers by these agencies, including the
revelation in 1974 that the FBI and foreign intelligence agencies had spied on over 10,000 U.S.
citizens, including Martin Luther King.
A Rush Job
The bill is 342 pages long and makes changes, some large and some small, to over 15 different
statutes. This document provides explanation and some analysis to the sections of the bill relating
to online activities and surveillance. Other sections, including those devoted to money laundering,
immigration and providing for the victims of terrorism, are not discussed here.
Yet even just considering the surveillance and online provisions of the USAPA, it is a large and
complex law that had over four different names and several versions in the five weeks between the
introduction of its first predecessor and its final passage into law. While containing some sections
that seem appropriate -- providing for victims of the September 11 attacks, increasing translation
facilities and increasing forensic cybercrime capabilities -- it seems clear that the vast majority of
the sections included have not been carefully studied by Congress, nor was sufficient time taken to
debate it or to hear testimony from experts outside of law enforcement in the fields where it makes
major changes. This concern is amplified because several of the key procedural processes
applicable to any other proposed laws, including inter-agency review, the normal committee and
hearing processes and thorough voting, were suspended for this bill.
Were our Freedoms the Problem?
The civil liberties of ordinary Americans have taken a tremendous blow with this law, especially
the right to privacy in our online communications and activities. Yet there is no evidence that our
previous civil liberties posed a barrier to the effective tracking or prosecution of terrorists. In fact,
in asking for these broad new powers, the government made no showing that the previous powers
of law enforcement and intelligence agencies to spy on US citizens were insufficient to allow them
to investigate and prosecute acts of terrorism. The process leading to the passage of the bill did
little to ease these concerns. To the contrary, they are amplified by the inclusion of so many
provisions that, instead of aimed at terrorism, are aimed at nonviolent, domestic computer crime.
In addition, although many of the provisions facially appear aimed at terrorism, the Government
made no showing that the reasons they failed to detect the planning of the recent attacks or any
other terrorist attacks were the civil liberties compromised with the passage of USAPA.
Executive Summary
Chief Concerns
The EFF's chief concerns with the USAPA include:
1.Expanded Surveillance With Reduced Checks and Balances. USAPA expands all
four traditional tools of surveillance -- wiretaps, search warrants, pen/trap orders and
subpoenas. Their counterparts under the Foreign Intelligence Surveillance Act (FISA) that
allow spying in the U.S. by foreign intelligence agencies have similarly been expanded. This
means:
a.Be careful what you put in that Google search. The government may now spy
on web surfing of innocent Americans, including terms entered into search engines,
by merely telling a judge anywhere in the U.S. that the spying could lead to
information that is "relevant" to an ongoing criminal investigation. The person spied
on does not have to be the target of the investigation. This application must be
granted and the government is not obligated to report to the court or tell the person
spied up what it has done.
b.Nationwide roving wiretaps. FBI and CIA can now go from phone to phone,
computer to computer without demonstrating that each is even being used by a
suspect or target of an order. The government may now serve a single wiretap,
FISA wiretap or pen/trap order on any person or entity nationwide, regardless of
whether that person or entity is named in the order. The government need not make
any showing to a court that the particular information or communication to be
acquired is relevant to a criminal investigation. In the pen/trap or FISA situations,
they do not even have to report where they served the order or what information
they received. The EFF believes that the opportunities for abuse of these broad new
powers are immense. For pen/trap orders, ISPs or others who are not named in the
do have authority under the law to request certification from the Attorney General's
office that the order applies to them, but they do not have the authority to request
such confirmation from a court.
c.ISPs hand over more user information. The law makes two changes to increase
how much information the government may obtain about users from their ISPs or
others who handle or store their online communications. First it allows ISPs to
voluntarily hand over all "non-content" information to law enforcement with no need
for any court order or subpoena. sec. 212. Second, it expands the records that the
government may seek with a simple subpoena (no court review required) to include
records of session times and durations, temporarily assigned network (I.P.)
addresses; means and source of payments, including credit card or bank account
numbers. secs. 210, 211.
d.New definitions of terrorism expand scope of surveillance. One new definition
of terrorism and three expansions of previous terms also expand the scope of
surveillance. They are 1) § 802 definition of "domestic terrorism" (amending 18 USC
§2331), which raises concerns about legitimate protest activity resulting in conviction
on terrorism charges, especially if violence erupts; adds to 3 existing definition of
terrorism (int'l terrorism per 18 USC §2331, terrorism transcending national borders
per 18 USC §2332b, and federal terrorism per amended 18 USC
§2332b(g)(5)(B)). These new definitions also expose more people to surveillance
(and potential "harboring" and "material support" liability, §§ 803, 805).
2.Overbreadth with a lock of focus on terrorism. Several provisions of the USAPA have
no apparent connection to preventing terrorism. These include:
a.Government spying on suspected computer trespassers with no need for
court order. Sec. 217.
b.Adding samples to DNA database for those convicted of "any crime of
violence." Sec. 503. The provision adds collection of DNA for terrorists, but then
inexplicably also adds collection for the broad, non-terrorist category of "any crime
of violence."
c.Wiretaps now allowed for suspected violations of the Computer Fraud and
Abuse Act. This includes anyone suspected of "exceeding the authority" of a
computer used in interstate commerce, causing over $5000 worth of combined
damage.
d.Dramatic increases to the scope and penalties of the Computer Fraud and
Abuse Act. This includes: 1) raising the maximum penalty for violations to 10 years
(from 5) for a first offense and 20 years (from 10) for a second offense; 2) ensuring
that violators only need to intend to cause damage generally, not intend to cause
damage or other specified harm over the $5,000 statutory damage threshold; 3)
allows aggregation of damages to different computers over a year to reach the
$5,000 threshold; 4) enhance punishment for violations involving any (not just
$5,000) damage to a government computer involved in criminal justice or the
military; 5) include damage to foreign computers involved in US interstate
commerce; 6) include state law offenses as priors for sentencing; 7) expand
definition of loss to expressly include time spent investigating, responding, for
damage assessment and for restoration.
3.Allows Americans to be More Easily Spied Upon by US Foreign Intelligence
Agencies. Just as the domestic law enforcement surveillance powers have expanded, the
corollary powers under the Foreign Intelligence Surveillance Act have also been greatly
expanded, including:
a.General Expansion of FISA Authority. FISA authority to spy on Americans or
foreign persons in the US (and those who communicate with them) increased from
situations where the suspicion that the person is the agent of a foreign government is
"the" purpose of the surveillance to anytime that this is "a significant purpose" of the
surveillance.
b.Increased information sharing between domestic law enforcement and
intelligence. This is a partial repeal of the wall put up in the 1970s after the
discovery that the FBI and CIA had been conducting investigations on over half a
million Americans during the McCarthy era and afterwards, including the pervasive
surveillance of Martin Luther King in the 1960s. It allows wiretap results and grand
jury information and other information collected in a criminal case to be disclosed to
the intelligence agencies when the information constitutes foreign intelligence or
foreign intelligence information, the latter being a broad new category created by this
law.
c.FISA detour around federal domestic surveillance limitations; domestic
detour around FISA limitations. Domestic surveillance limits can be skirted by the
Attorney General, for instance, by obtaining a FISA wiretap against a US person
where "probable cause" does not exist, but when the person is suspected to be an
agent of a foreign government. The information can then be shared with the FBI. The
reverse is also true. |
