E-Legal: Life Under the USA Patriot Act

In response to a letter from Rep. F. James Sensenbrenner, R-Wis., and Rep. John Conyers, D-Mich., to Attorney General John Ashcroft asking for detailed information about how the USA Patriot has been implemented, Assistant Attorney General Daniel Bryant recently sent four lengthy reply letters to the Committee of the Judiciary of the U.S. House of Representatives. The reply letters often decline to supply specific “classified” information on actual implementation of the USA Patriot Act — the anti-terrorism law passed in 2001 that provides law enforcement authorities with broader authority to conduct Internet surveillance, search homes and offices, and share secret grand jury information with intelligence organizations. However, some of the responses shed some light on life under the USA Patriot Act.

DISCLOSURE OF FOREIGN AND COUNTERINTELLIGENCE INFORMATION

The act, at � 203(b), authorizes disclosure of electronic, wire and oral intercept information consisting of certain foreign intelligence and counterintelligence information to law enforcement, intelligence, immigration, national defense and national security officials. In response to the question of how many times the Department of Justice has made disclosures to the intelligence community pursuant to this authority, the DOJ reports that such disclosures have happened on only two occasions.

DISCLOSURES BY ELECTRONIC COMMUNICATIONS SERVICE PROVIDERS

Section 212 of the act authorizes any electronic communications service provider to disclose communications if it reasonably believes that an emergency involving immediate death or physical injury requires disclosure. Sensenbrenner and Conyers posed the question as to how many times the DOJ has received information as a result of this authority.

The DOJ response states that this “important” provision of the act gives Internet Service Providers “the legal authority they need to disclose information in order to save lives.” Still, the department could not be specific in terms of numbers, and responds that “although we have received anecdotal accounts of its use, there are no statistics detailing the number of times that disclosures have occurred or the basis for such disclosures.” The department states “it has been used on several occasions, including to permit ISPs to disclose records that assisted law enforcement in tracing the source of a kidnapper’s communications.”

USE OF PEN REGISTERS AND TRAP AND TRACE DEVICES

The act, at � 214, authorizes the DOJ to obtain orders permitting pen registers and trap-and-trace devices for foreign intelligence investigations in facilities used by American citizens. In response to the representatives’ question about how many times this authority has been invoked and about procedures used to protect First Amendment rights, the department stated that the number of times this authority has been invoked is classified and that the methods used are not solely directed at activities protected by the First Amendment.

SEARCH WARRANTS FOR ELECTRONIC EVIDENCES

Section 220 of the act permits search warrants for electronic evidence to be served in a jurisdiction other than the jurisdiction of the court issuing the warrant. In response to the representatives’ question about how many times this has happened, the DOJ stated that the “exact number” is “unknown,” but that the impact of � 220 has been “significant.” For example, after Sept.11, 2001, districts where large ISPs reside, such as the Eastern District of Virginia where AOL is located, were “inundated with search warrant applications, placing a tremendous burden on federal agents and prosecutors and federal magistrates in those districts.” The “sheer volume” made it difficult to process the applications in a “deliberate, timely fashion.” Because of � 220, the “deluge of search warrant applications in the busiest districts” has diminished.

DISCLOSURES BY CABLE COMPANIES

Section 211 of the act was intended to clarify the type of information cable companies could disclose to law enforcement authorities. The representatives asked how this has happened in practice.

The DOJ responded by stating that prior to � 211, cable companies that provided telephone or Internet service were torn in terms of whether they should produce information relevant to a criminal investigation. Cable companies felt constrained not to supply information under the Cable Act, but they felt compelled to provide information under the Electronic Communications Privacy Act (ECPA). “One particularly unfortunate case involved the investigation of a suspected pedophile who distributed images of child pornography using a cable Internet connection and bragged that he was sexually molesting a minor girl. Law enforcement agents obtained a court order pursuant to ECPA that commanded the suspect’s provider to disclose the suspect’s name and address, but the provider refused to comply with the order, citing the pre-amendment Cable Act. The young girl was left at risk of sexual molestation for more than two weeks before the investigators following other leads were able to identify and arrest the suspect. Only after the arrests did the cable company turn over the records.”

Now, � 211 clarifies that ECPA, not the Cable Act, governs disclosures by cable companies, according to the Department of Justice. Apparently, “cable companies now routinely comply with the legal process pursuant to ECPA without fear of liability under the Cable Act.”

PREVENTION OF TERRORIST ATTACKS

In a speech before the Commonwealth Club of California, FBI Director Robert Mueller stated that investigations by the FBI have helped to prevent more terrorist attacks. The representatives asked for details in this regard.

The Department of Justice stated “it is impossible to know how many terrorist attacks have been prevented,” but that governmental authorities “have been aggressively working to prevent another attack.”

COMPLAINTS OF CIVIL RIGHTS AND CIVIL LIBERTIES VIOLATIONS

Section 1001 of the act requires the Department of Justice Inspector General to collect and investigate complaints of civil rights and civil liberties abuses by DOJ employees. The representatives asked how many such complaints have been received.

The Department of Justice said that as of June 15, the Inspector General had received “approximately 450 complaints by letter, e-mail, telephone and by referral from the Civil Rights Division.” The department states that most of these complaints were directed at local police or other state and federal agencies, and not at Department of Justice employees. To date, the Inspector General has opened nine civil rights/civil liberties cases.

IN THE KNOW

While the level of detail provided to the general public by way of the disclosures by the Department of Justice is not overwhelming, some information certainly is better than none. Hopefully at least, House committee members with security clearances are getting the full story so that they can evaluate the effectiveness of the USA Patriot Act.

Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is www.duanemorris.com. He may be reached by e-mail at [email protected].