EFF Analysis Of The Provisions Of The USA PATRIOT ActExecutive Summary
Chief Concerns
The EFF's chief concerns with the USAPA include:
1.
Expanded Surveillance With Reduced Checks and Balances. USAPA expands all four traditional tools of surveillance -- 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 put in that Google search. The government may now spy on web surfing of innocent Americans, including terms entered into search engines, 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 even being used by a suspect or target of an order. The government may now serve a single 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, ISPs or others who are not named in the do have authority under the law to request certification from the Attorney General's office that the order applies to them, but they do not have the authority 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. sec. 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; means and source of payments, including credit card or bank account numbers. secs. 210, 211.
4.
New definitions of terrorism expand scope of surveillance. One new definition of terrorism and three expansions of previous terms also expand the scope of surveillance. They are 1) § 802 definition of "domestic terrorism" (amending 18 USC §2331), which raises concerns about legitimate protest activity resulting in conviction on terrorism charges, especially if violence erupts; adds to 3 existing definition 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)). These new definitions also 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 the USAPA have no apparent connection to preventing terrorism. These include:
1.
Government spying on suspected computer trespassers with no need for court order. Sec. 217.
2.
Adding samples to DNA database for those convicted of "any crime of violence." Sec. 503. The provision adds collection of DNA for terrorists, but then inexplicably also adds 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 the authority" of a computer used in interstate commerce, causing over $5000 worth of combined damage.
4.
Dramatic increases to the scope and penalties of the Computer Fraud and Abuse Act. This includes: 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) allows aggregation of damages to different computers over a year to reach the $5,000 threshold; 4) enhance punishment for violations involving any (not just $5,000) damage to a government computer involved in criminal justice or the military; 5) include damage to foreign computers involved in US interstate commerce; 6) include state law offenses as priors for sentencing; 7) expand definition of loss to expressly include time spent investigating, responding, for damage assessment and for restoration.
3.
Allows Americans to be More Easily Spied Upon by US 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 US (and those who communicate with them) increased from situations where the suspicion that the person is the agent of a foreign government is "the" purpose of the surveillance to anytime that this 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 and grand jury information and other information collected in a criminal case to be disclosed to the intelligence agencies when the information constitutes foreign intelligence or foreign intelligence information, the latter being a broad new category created by this law.
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 US 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.
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