PART E: Other Surveillance Provisions
Surveillance Power: Expanding the Scope of the Government?s Surveillance Power
A number of provisions of the PATRIOT Act increase the government’s surveillance authority with respect to a variety of information. Section 217 permits law enforcement officials to intercept the communications of an intruder within a protected computer system (for example, a system used by the federal government, a financial institution, or one used in interstate or foreign commerce or communications) without the necessity of a warrant or a court order. However, only the intruding communications to or from the invaded system can be intercepted under this section.
Section 505 altered 18 U.S.C. ?2709 to streamline the process of obtaining national security letter (NSL) authority and to broaden its scope. NSLs are a type of secret, administrative subpoena that relate to national security issues. With NSLs, the FBI can compel communications providers to release subscriber information and toll billing records. The 505 provision replaced the requirement showing a direct link to a foreign power or an agent of a foreign power by requiring that the NSL be “ relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution.”
One federal district court has already found unconstitutional the non-disclosure provision of the original NSL statute (in a ruling possibly broad enough to affect other similar NSL statutes authorized by the Patriot act that include non-disclosure bars). See Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004) (indicating generally that Fourth Amendment and free speech rights are implicated when an individual receives an NSL but leaving open the possibility that the incorporation of judicial review into the NSL procedures may validate the statute). In Doe, the only objection to the actual PATRIOT Act change to the NSL statute came from an amicus curiae brief. 334 F. Supp. 2d 471, 484 n.42 (S.D.N.Y. 2004).
Section 506 preserves the investigative jurisdiction of the Secret Service over violations specified under 18 U.S.C. ? 1030 other than those dealing with classified information under 18 U.S.C. ? 1030(a)(1). Federal statute 18 U.S.C. ? 1030 prohibits unauthorized access to computer information under various circumstances. Section 506 also enlarges the investigative jurisdiction of the Secret Service from offenses involving “ credit and debit card frauds, and false identification documents or devices’’to crimes related to “ access device frauds, false identification documents or devices, and any fraud or other criminal or unlawful activity in or against any federally insured financial institution’’.
Surveillance related to educational information is most affected by sections 507 and 508. Section 507 creates an exception to the confidentiality requirements of the Family Educational Rights and Privacy Act, 20 U.S.C. ? 1232(g), permitting senior Justice Department officials to request an ex parte court order to collect educational records relevant to an investigation or prosecution of a crime of terrorism as an exception to the Cf. John W. Whitehead & Steven H. Aden, Forfeiting “Enduring Freedom” for “Homeland Security”: A Constitutional Analysis of the USA PATRIOT Act and the Justice Department’s Anti-Terrorism Initiatives, 51 Am. U. L. Rev. 1081 (2002) (highlighting that the loose section 507 requirements for disclosure diverge significantly from the previous requirements for a subpoena, which was based on probable cause and a sworn affidavit). Educational institutions that comply receive immunity from liability for the disclosure. Section 508 calls for an ex parte court order procedure under which senior Justice Department officials may seek authorizations to collect individually identifiable information from the National Center for Education (“N.C.E”) as an exception to the confidentiality requirements of the National Education Statistics Act, 20 U.S.C. ? 9007. Officers and employees of the NCE who cooperate receive immunity from liability for the disclosure.
PATRIOT Act Provisions
- Permits law enforcement officials to intercept the communications of an intruder within a protected computer system (for example, a system used by the federal government, a financial institution, or one used in interstate or foreign commerce or communications) without the necessity of a warrant or a court order. But, only the intruding communications, those to or from the invaded system, are exposed under this section. (217)
- Amends FISA to make it clear that computer trespasser exception of 217 as it applies to federal law enforcement does NOT apply to FISA surveillance orders. FISA surveillance orders may be issued to acquire the communications of a computer trespasser. (1003)
- Specifies that National Security Letters (NSLs) can now be issued whenever the FBI certifies that the information sought is relevant to an authorized foreign counterintelligence investigation thus removing the previous requirement of documentation and specific and articulable facts. (505)
- Preserves the investigative jurisdiction of the Secret Service over violations other than those dealing with classified information under 18 U.S.C. 1030(a)(1). (506)
- Enlarges the investigative jurisdiction of the Secret Service from offenses involving “credit and debit card frauds, and false identification documents and devices” to crimes involving access device fraud, false identification documents and devices, and any fraud or other criminal or unlawful activity in or against any federally insured financial institution” (506)
- Calls for an ex parte court order procedure under which senior Justice Department officials may seek authorizations to collect educational records relevant to an investigation or prosecution of a crime of terrorism (as an exception to the confidentiality requirements of the General Education Provisions Act, 20 U.S.C. 1232g). Educational institutions who comply receive immunity from liability for the disclosure (507)
- Calls for an ex parte court order procedure under which senior Justice Department officials may seek authorizations to collect individually identifiable information from the National Center for Education (as an exception to the confidentiality requirements of the National Education Statistics Act, 20 U.S.C. 9007). Officers and employees of the Center who cooperate receive immunity from liability for the disclosure. (508)
