Module V -
Governmental Collection of Data - Part II: USA Patriot
and Foreign Intelligence Surveillance
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.
Electronic Frontier Foundation (EFF) Analysis of The Provisions
Of The USA PATRIOT Act That Relate To Online Activities (Oct 31,
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
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.]
Please read through the following discussion questions. Use the
links after each question to submit your thoughts to the discussion
board. Feel free to address as many questions as you like.
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
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.
Suppose that the FBI installs Carnivore [described on the Module
IV Homepage] on Arthur's Internet Service Provider (ISP) server
after obtaining a judicial order permitting it to trap "routing"
but not "content" information sent to or from Arthur's
computer. If reports about Carnivore are accurate, this device permits
the FBI to see the information such as the IP address of the sender
& recipient of the web addresses Arthur contacts. Carnivore
also permits the FBI to see the URL addresses of every website Arthur
visits. Although the FBI does not literally "see" the
pages Arthur visits (e.g., "osama.org" "bombbuild.com")
by obtaining the addressing information it can easily and independently
view the same webpages Arthur downloaded.
Would such a use of an intercept Order violate USA Patriot? Would
it violate the Fourth Amendment?
Assume that Chuck also uses GoNet as his ISP. Chuck is an upstanding
citizen who no one believes is, has been, or will be committing
criminal acts. The FBI does not have a court order pertaining to
Chuck. The FBI does, however, obtain a proper court order to install
Carnivore to review Arthur's routing information. Assume, however,
that since Chuck's search and browsing requests must go through
the same Carnivore filter that Arthur's does, Carnivore necessarily
reads at least the IP addresses sought by Chuck and all of Chuck's
neighbors who use GoNet.
Would such a use of Carnivore violate Chuck's Fourth
Amendment rights even if no human actually tracks Chuck's browsing
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?
Go to Discussion Summary
Additional Readings & Resources (optional):
1. Center for Democracy & Technology's (CDT) Government Surveillance
2. Final Version USA Patriot:
3. Department of Justice's Section-by-Section Summary of the USA
4. Congressional Research Service Analysis of USA PATRIOT [pdf],
December 10, 2001
5. DOJ Field Guidance on New Authorities Enacted in the 2001 Anti-Terrorism
Legislation [pdf] Oct 2001.
5. ACLU on USA Patriot
6. Electronic Frontier Foundation (EFF) on USA Patriot
7. Electronic Privacy Information Center (EPIC)
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