Anti Terrorism Technology:
USA Patriot Act

The USA Patriot Act was signed on October 26, 2001. It covers a wide
range of issues, from immigration laws to criminal penalties for terrorist
acts. The section of the Patriot Act most relevant to technological
counter-terrorism methods is entitled "Enhanced Surveillance Procedures",
which is further subdivided into twenty-five sections (USA Patriot Act).
I will attempt to highlight the surveillance provisions and the concerns
that they raise.

Pen Register and Trap and Trace Devices

Before the Patriot Act, pen registers and trap and trace devices could be
used to collect information on numbers dialed on a telephone line and the
originating number of a phone call. The new definition of a pen register
is "device or process which records or decodes dialing, routing,
addressing, or signaling information transmitted by an instrument or
facility from which a wire or electronic communication is transmitted,
provided, however, that such information shall not include the contents of
any communication". A trap and trace device is defined as "a device or
process which captures the incoming electronic or other dialing, routing,
addressing, and signaling information reasonably likely to identify the
source of a wire or electronic communication, provided, however, that such
information shall not include the contents of any communication;"
(USA Patriot Act, Section 216).

This ammendment raises privacy concerns because it does not take into
account the fact that electronic data can often contain much more
information than a telephone number. For example, according to the
Patriot Act, a URL can legally be captured. But a URL can be followed in
a way that telephone numbers can not, and thus the Patriot Act "codifies
the FBI's questionable interpretation of the pen register statute,
thereby closing the door to fully informed... consideration of this
complex issue" (Analysis of Provisions...).

Roving Wiretap Authority

The Foreign Intelligence Surveillance Act was amended (in the Patriot Act)
to include "roving surveillance" authority. In other words, the authority
to intercept communications without specifying the particular facility to
be monitored (USA Patriot Act, Section 206).

Roving surveillance raises privacy concerns because it allows for generic
court orders that can be applied to public facilities that an intelligence
target might use, thereby compromising the privacy of many people.
Additionally, roving surveillance does not comply with the Fourth
Amendment requirement that any search warrant "particularly describe
the place to be searched" (Analysis of Provisions...).

Authority to Conduct Secret Searches

The Patriot Act allows law enforcement officials to delay notifying
someone subject to a search warrant. The legislation allows for delayed
notification under a wide variety of circumstances, as follows:

"With respect to the issuance of any warrant or court order under this
section, or any other rule of law, to search for and seize any property or
material that constitutes evidence of a criminal offense in violation of
the laws of the United States, any notice required, or that may be
required, to be given may be delayed if--

1. the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result
2. the warrant prohibits the seizure of any tangible property, any wire or electronic communication, or... any stored wire or electronic information, except where the court finds reasonable necessity for the seizure; and
3. the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown" (USA Patriot Act, Section 213).

It is worth noting the language used above: "to search for and seize any
property or material that constitutes evidence of a criminal offense in
violation of the laws of the United States...". Thus, the above statute
pertains to all searches, and not just those involving suspects
in cases of terrorism. This raises serious concerns about the possible
violation of Fourth Amendment Rights (Analysis of Provisions...).

Foreign Intelligence Information

Section 218 of the Patriot Act reads, "Sections 104(a)(7)(B) and section
303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign
Intelligence Surveillance Act of 1978 are each amended by striking 'the
purpose' and inserting 'a significant purpose'" (USA Patriot Act, Section 218).

The cryptic language above means that law enforcement officials can now
conduct more searches under the standards set forth in the Foreign
Intelligence Surveillance Act of 1978 (FISA). FISA standards are less
stringent than regular law enforcement standards in order to allow for
easier collection of foreign intelligence information. Revisions to FISA
by the Patriot Act allows for lax standards in criminal investigations
where there is a chance that the suspect may be involved in espionage or
terrorism (Analysis of Provisions...).

Introduction | USA Patriot Act | Carnivore | Magic Lantern | Bibliography