[NewsViewsnolose] The Patriot Act Explained‏

newsviewsnolose@yahoogroups.com on behalf of dick.mcmanus

The Patriot Act is very confusing because most people don't understand the US wiretap laws that were in affect prior to the Patriot Act. I agree with the new changes to the old law which now gives law enforcement agencies the authority to monitor a suspect's communications from one computer to another, or one phone to another when based on probable cause and with a court ordered, Before, the law enforcement agencies needed a court order for each phone number, etc, or computer or ISP. The new law within the Patriot Act gives law enforcement a much needed tool to keep up the new technology of cell phones, palm pilots, pagers, and computers to investigate CRIME (to include cyber crime) and protect us all from the bad guys.

However, the Patriot Act went way too far.

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.

USAPA expands all four traditional tools of surveillance -- wiretaps, search warrants, pen/trap orders and subpoenas.

1. The government may now spy on web surfing of 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. (I have not problem with this, so long as they have a court order and the judge is kept informed as now required).
2. 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 upon what it has done.
3. Nationwide roving wiretaps. FBI and CIA (NO WAY not in America) 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. 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.
4. 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.

Domestic Law Enforcement	Foreign Intelligence Surveillance
1. Intercept Orders. Title III (named after the section of the original legislation, the Omnibus Crime Control and Safe Streets Act of 1968) surveillance is a traditional wiretap that allows the police to bug rooms, listen to telephone conversations, or get content of electronic communications in real time. Obtained after law enforcement makes a showing to a court that there is "probable cause" to believe that the target of the surveillance committed one of a special list of severe crimes. Law enforcement must report back to the court what it discovers. Up to 30 days; must go back to court for 30-day extensions (Courts do not treat unopened e-mail at ISPs as real-time communications.)	1. FISA Intercept Orders. Secret Court. No public information about what surveillance requested or what surveillance actually occurs, except for a raw annual report of number of requests made and number granted (the secret court has only refused one request) Previous standard was certification by Attorney General that "the purpose" of an order is a suspicion that the target is a foreign power or an agent of a foreign power. Attorney General is not required to report to the court what it does. Up to 90 days, or 1 year (if foreign power)
2. Pen/Trap. Pen/Trap surveillance was based upon the physical wiring of the telephone system. It allowed law enforcement to obtain the telephone numbers of all calls made to or from a specific phone. Allowed upon a "certification" to the court that the information is relevant to an ongoing criminal investigation. Court must grant if proper application made Does not require that the target be a suspect in that investigation and law enforcement is not required to report back to the court. Prior to USAPA there had been debate about how this authority is to be applied in the Internet context.	2. FISA Pen/Trap. Previous FISA pen/trap law required not only showing of relevance but also showing that the communications device had been used to contact an "agent of a foreign power." While this exceeds the showing under the ordinary pen/trap statute, such a showing had function of protecting US persons against FISA pen/trap surveillance.
3. Physical search warrants Judicial finding of probable cause of criminality; return on warrant. Previously, agents were required at the time of the search or soon thereafter to notify person whose premises were searched that search occurred, usually by leaving copy of warrant. USAPA makes it easier to obtain surreptitious or "sneak-and-peek" warrants under which notice can be delayed.	3. FISA Physical search warrants See FISA 50 USC § 1822. USAPA extends duration of physical searches. Under previous FISA, Attorney General (without court order) could authorize physical searches for up to one year of premises used exclusively by a foreign power if unlikely that US person will be searched; minimization required. A.G. could authorize such searches up to 45 days after judicial finding of probable cause that US target is or is an agent of a foreign power; minimization required, and investigation may not be based solely on First Amendment-protected activities.
4. Subpoenas for stored information. Many statutes authorize subpoenas; grand juries may issue subpoenas as well. The concern here has been for stored electronic information, both e-mail communications and subscriber or transactional records held by ISPs. Subpoenas in this area are governed by the Electronic Communications Privacy Act (ECPA). 3. Removes voicemail from Title III purview. USAPA sec. 209 allows police to get voicemail and other stored wire communications without an intercept order; now, only search warrant needed. 1. Single-jurisdiction search warrants for terrorism and for electronic evidence. In general, search warrants must be obtained within a judicial district for searches in that district. Fed.R.Crim.Pro. 41. USAPA relaxes this rule. USAPA sec. 219 Adds terrorist investigations to the list of items where single-jurisdiction search warrants may be issued. Allows issuance in any district in which activities related to terrorism may have occurred for search of property or person within or outside the district. USAPA sec. 220. Once a judge somewhere approves a warrant for seizing unopened e-mail less than 180 days old, that order can be served on any ISP/OSP or telecommunications company nationwide, without any need that the particular service provider be identified in the warrant.

http://www.eff.org/Privacy/Surveillance/Terrorism_militias/20011031_eff_usa_patriot_analysis.php

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