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PRIVACY IN CYBERSPACE
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Module V -
Governmental Collection of Data - Part II: USA Patriot and Foreign Intelligence Surveillance Assigned Reading: 1. Please read the Introduction to this Module. The Introduction to Module V describes key features of the comprehensive statute enacted in the wake of the September 11 tragedy known as USA Patriot, and how that Act has softened the requirements for U.S. government surveillance of internet traffic. The Introduction also introduces a key statute, the Foreign Intelligence Surveillance Act (FISA), and describes how recent amendments to that statute may transform governmental power to tap web traffic not only domestically but internationally as well. 2. Articles: Electronic Frontier Foundation (EFF) Analysis of The Provisions
Of The USA PATRIOT Act That Relate To Online Activities (Oct 31,
2001) Ronald L. Plesser, James J. Halpert, Emilio W. Cividanes, USA Patriot Act For Internet And Communications Companies, Computer and Internet Lawyer (March, 2002) [section by section analysis of USA Patriot] Terror's Confounding Online Trail, New York Times Article, March
28, 2002 [Also assigned in Module IV. Note that the article indicates
that cyberspace spying oftentimes doesn't work since the determined
terrorist has many ways to avoid detection.]
1. As described in the assigned materials, USA Patriot gives law enforcement authorities access to "dialing, routing and signaling" information with a trap/trace order. The Act expressly states that "contents" of communications may not be obtained with trap/trace orders, but USAPA does not define the term "content" in reference to the internet. With telephone calls, the "content" of the communication can be readily separated from the "communication attributes" (e.g., numbers dialed, time, length and date of call). Thus, a trap/trace order that only permits the government to obtain the communication attributes of a telephone call does not run the risk that the content of the communication is also being trapped. However, with internet use content cannot easily be separated from internet routing information. When Arthur Googles "jihad.com" followed by a search for "bombs.com," "Osama.org," and then "ACLU," it is no longer possible to separate the routing information from the content of pages Arthur downloaded in response to his Google search. The "content" is revealed by the website routing and webpages URL's that Arthur has obtained. HYPOTHETICAL E Would such a use of an intercept Order violate USA Patriot? Would it violate the Fourth Amendment? HYPOTHETICAL F Would such a use of Carnivore violate Chuck's Fourth Amendment rights even if no human actually tracks Chuck's browsing habits? 2. Should citizens and residents of countries other than the U.S. be concerned about the expansion of surveillance powers of the United States government, especially under the Foreign Intelligence Surveillance Act? In this regard, note that USA Patriot by its terms makes clear that Congress desired to protect American citizens from FISA searches unless Americans were suspected as foreign agents. Citizens of other countries do not receive the same treatment. 3. Should one be concerned about the expansion of jurisdiction of the FISA secret court? Unlike other judicial proceedings in the United States, in which openness is helps assure accountability, there is little to hold the secret court accountable: no appeals, no published opinions, no representation by anyone other than the government. At the same time, the shocking events of September 11, 2001, have caused many to believe that whatever cybersurveillance government needs to prevent similar events should be authorized. Is the expansion of surveillance capability under FISA appropriate in these circumstances? 4. Many provisions of USA Patriot allow or even encourage ISP's voluntary to disclose private information including customer records as well as content of electronic transmissions. ISPs are given broad latitude to make such disclosures either to protect themselves against cyber-trespassers, or to provide information to the government that they believe might be relevant to government investigations. Under the indicated circumstances, the ISP would be immune from civil liability for disclosing such information. Do these provisions raise any concerns about privacy of the customers of ISP's (i.e., just about everyone who accesses the internet)? Or, is it appropriate to encourage ISP's voluntarily to cooperate with government investigations?
1. Center for Democracy & Technology's (CDT) Government Surveillance
Page, http://www.cdt.org/wiretap/
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