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EFF Analysis of the Provisions of the Patriot Act
The Electronic Frontier Foundation
October 27, 2003

Introduction

On October 26, 2001, President Bush signed the USA PATRIOT Act (PATRIOT) into law. PATRIOT gave sweeping new powers to both domestic law enforcement and international intelligence agencies and eliminated the checks and balances that previously gave courts the opportunity to ensure that such powers were not abused. Most of these checks and balances were put into place after previous misuse of surveillance powers by these agencies were uncovered 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 PATRIOT, 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 were not 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 U.S. 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 being aimed at terrorism, are aimed at nonviolent, domestic 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 PATRIOT.

Executive Summary

Chief Concerns

The EFF's chief concerns with PATRIOT include:

  1. Expanded Surveillance With Reduced Checks and Balances. PATRIOT expands all four traditional tools of surveillance used by law enforcement -- 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:
    1. Be careful what you read on the Internet. The government may now monitor the online activities of innocent Americans, and perhaps even track what Web sites you read, 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 upon what it has done.
    2. Nationwide roving wiretaps. FBI and CIA can now go from phone to phone, computer to computer without demonstrating that each is being used by a suspect or target of an order, or even specifically identifying the person targeted. The government may now serve a single Title III 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, while ISPs or others who are not specifically named in the order do have the legal right to request certification from the Attorney General's office that the order applies to them, they have no right to request such confirmation from a court.
    3. 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. 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, and means and source of payments, including credit card or bank account numbers. 210, 211.
    4. New definitions of terrorism expand scope of surveillance. One new definition of terrorism and three expansions of previous definitions also expand the scope of surveillance.  PATRIOT 802's definition of "domestic terrorism" (amending 18 USC 2331) raises concerns about legitimate protest activity being prosecuted as terrorism, especially if violence erupts, while additions to three existing definitions 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)) expose more people to surveillance (and potential "harboring" and "material support" liability, 803, 805).
  2. Overbreadth with a lack of focus on terrorism. Several provisions of PATRIOT have no apparent connection to preventing terrorism. These include:
    1. Government spying on suspected computer trespassers with no need for court order. 217.
    2. Adding samples to DNA database for those convicted of "any crime of violence."  503. This provision allows collection of DNA for terrorists, but then inexplicably also allows collection for the broad, non-terrorist category of "any crime of violence."
    3. Wiretaps now allowed for suspected violations of the Computer Fraud and Abuse Act. This includes anyone suspected of exceeding authorized access to a computer used in interstate commerce and thereby causing over $5000 worth of combined damage.
    4. Dramatic increases to the scope and penalties of the Computer Fraud and Abuse Act. These include: 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) allowing aggregation of damages to different computers over a year to reach the $5,000 threshold; 4) enhancing punishment for violations involving any (not just $5,000) damage to a government computer involved in criminal justice or the military; 5) including damage to foreign computers involved in U.S. interstate commerce; 6) including state law offenses as priors for sentencing; 7) expanding the definition of loss to expressly include time spent on investigation, response, damage assessment and restoration.
  3. Allows Americans to be More Easily Spied Upon by U.S. 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:
    1. General Expansion of FISA Authority. FISA authority to spy on Americans or foreign persons in the U.S. (and those who communicate with them) increased from situations where obtaining foreign intelligence information is "the" purpose of the surveillance to anytime that it is "a significant purpose" of the surveillance.
    2. 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, grand jury information and other evidence collected in a criminal case to be disclosed to the intelligence agencies when the information constitutes foreign intelligence information.
    3. 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 U.S. 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.
Future Actions

The EFF urges the following:

  1. That law enforcement and the intelligence agencies use these new powers carefully and limit their use to bona fide investigations into acts of terrorism.
  2. That the courts appropriately punish those who misuse these new laws and that Congress reexamine its decision to grant such broad, unchecked powers.
  3. That if these laws are misused to harm the rights of ordinary Americans involved in low-level crimes unrelated to terrorism, the courts refuse to allow evidence collected through use of these broad powers to be used in prosecuting them.
    • That the many vague, undefined terms in PATRIOT be defined in a manner that protects the civil liberties and privacy of Americans.
  4. That ISPs and others served with "roving" wiretaps and other Orders that do not specify them as recipients require the Attorney General to certify that the order properly applies to them.
  5. That Congress require the law enforcement and intelligence agencies who operate under provisions of PATRIOT that are set to expire in December, 2005, to provide it with comprehensive reports about the use of these new powers, so as enable Congress to reasonably determine whether these provisions should be renewed.
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