Legal Issues

USA Patriot Act

The USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) was sweeping legislation passed after the 9/11/2001 attacks on the US.

The Act expanded the authority of U.S. law enforcement agencies to fight terrorism by giving government the capability to search telephone and e-mail communications, medical, financial and other records; permit foreign intelligence gathering within the United States; expanded regulation of financial transactions; and permit the detainment of non-US citizens suspected of terrorism-related acts. The act also expanded the definition of terrorism to include "domestic terrorism".

The USA PATRIOT Act allows government agencies to gather "foreign intelligence information" from both U.S. and non-U.S. citizens. According to Patrick Windham, this moved the US to the "MI-5 model" of surveillance, named after the British agency. MI-5 is a section of military intelligence started as a part of the Secret Service in 1909. Over the years, its mission evolved to counter-terrorism against the Irish Republican Army. However, it was discovered in 2006 to have kept secret files on over 250,000 people.

Government powers expanded under the USA PATRIOT Act:

Technological updates (which sometimes have the side-effect of decreasing privacy):

  • Cable companies are treated like phone companies for the purpose of wiretaps
  • "Roving wiretap" authority allows the interception of any communications without specifying the particular phone line or computer to be monitored
  • Wiretaps now can include addressing and routing information to allow surveillance of packet switched networks
  • Allow the FBI to gain access to stored voicemail through a search warrant, rather than through the more stringent wiretap laws.

But there are also significant changes that have nothing to do with technology updates:

  • Secret search: Eliminates the prior requirement that law enforcement provide a person subject to a search warrant with contemporaneous notice of the search. The new "secret search" provision applies where the court "finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse effect."
  • Greater disclosure: Requires disclosure of records of session times and duration, temporarily assigned network addresses, and means of payment by ISPs.
  • Lower proof requirements: Removes the requirement that the government prove the surveillance target is "an agent of a foreign power before obtaining a wiretap.

FISA

Foreign Intelligence Surveillance Act (FISA) of 1978 is a law prescribing procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between or among "foreign powers" on territory under United States control.

The act created a court that meets in secret, and approves or denies requests for search warrants. Only the number of warrants applied for, issued and denied, is reported.

FISA Applications Accepted and Rejected

FISA has relatively strict rules about who can be surveilled:

  • Without a court order: The President may authorize electronic surveillance without a court order for the period of one year provided it is only for foreign intelligence information and there is no "substantial likelihood" that the surveillance will acquire the contents of any communication to which a United States person is a party. Under the FISA act, anyone who engages in electronic surveillance except as authorized by statute is subject to both criminal penalties and civil liabilities.
  • Alternatively, the government may seek a court order permitting the surveillance using the FISA court, which requires that the target of the surveillance be a "foreign power" or an "agent of a foreign power", and that the places at which surveillance is requested is used or will be used by that foreign power or its agent.

Notable FISA Provisions

  • The FISA Court oversees requests for surveillance warrants by federal police agencies against suspected foreign intelligence agents inside the U.S. Proceedings before the FISA court are ex parte and non-adversarial. The court hears evidence presented solely by the Department of Justice. There is no provision for a release of information regarding such hearings, or for the record of information actually collected.
  • Physical Searches: In addition to electronic surveillance, FISA permits the "physical search" of the "premises, information, material, or property used exclusively by" a foreign power.
  • Lone wolf amendment: In 2004, FISA was amended to include a provision to allow FISA to issue search order without having to find a connection between the "lone wolf" (and individual operating alone) and a foreign government or terrorist group.

Protect America Act of 2007

Under the Protect America Act of 2007, communications that begin or end in a foreign country may be wiretapped by the US government without supervision even by the FISA Court. The Act removes from the definition of "electronic surveillance" in FISA any surveillance directed at a person believed to be located outside the United States. The bill expired on February 17, 2008 and is currently the source of controversy in Washington.

Bush administration warrantless wiretaps

In violation of FISA, the Bush Administration appears to have a program of warrantless domestic wiretapping. Bush signed an executive order to permit eavesdropping inside the country without court approval. "This is really a sea change," said a former senior official who specializes in national security law. "It's almost a mainstay of this country that the N.S.A. only does foreign searches." It has been reported that the NSA eavesdrops without warrant on up to 500 people in the United States at any given time, with thousands having been spied upon. In 2002, DOJ lawyers made this filing: "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

Guide to the Agencies

NSA: The NSA's mission, as set forth in Executive Order 12333, is to collect information that constitutes "foreign intelligence or counterintelligence" while not "acquiring information concerning the domestic activities of United States persons".

FBI: The mission of the FBI is "To protect and defend the United States against terrorist and foreign intelligence threats, to uphold and enforce the criminal laws of the United States" It was founded after the passage of the Interstate Commerce Act and has used its power against individuals ranging from Martin Luther King Jr. (to blackmail him with sex scandals) to John Lennon and Elvis Presley.

CIA: According to their website, "The Central Intelligence Agency's primary mission is to collect, evaluate, and disseminate foreign intelligence to assist the president and senior US government policymakers in making decisions relating to the national security." Law specifically prohibits the CIA prohibited from collecting foreign intelligence concerning the domestic activities of US citizens: its mission is to collect information related to foreign intelligence and foreign counterintelligence.

References

Delgado, Martin. "MI5 has secret dossiers on one in 160 adults" The Mail on Sunday. 9th July 2006 http://www.dailymail.co.uk/pages/live/articles/news/news.html?in_article_id=394775&in_page_id=1770

"USA PATRIOT Act", Public Law 107-56 http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:pub1056.107

"Foreign Intelligence Surveillance Act", 50 U.S.C. §1801-1811, 1821-29, 1841-46, and 1861-62 http://www.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_36.html

Risen, James and Lichtblau, Eric. "Bush Lets U.S. Spy on Callers Without Courts" The New York Times, December 16, 2005. Reposted at: http://www.commondreams.org/headlines05/1216-01.html