On Fear and Freedom Essay

My paper is on the legislation passed by the congress known as USA Patriot Act. My main focus will be on the part of this legislation that deals with telecommunication, which includes the Internet, phones, Cable etc. Because my intended audiences are telecommunication class 605, my analysis will be confined to the portions that deal with telecom and its effect; it will also touch on the fourth amendment right guaranteed in the constitution. It was just another day in fall; as usual America woke up and set out to do their daily chores.

But that day had a little (! but far reaching twist to it. It was September 11 2001. As the day progressed an unimaginable event took place. In an around 10 am two civilian passenger airline crashed into the symbol of America’s economic might, the twin towers. Then another crashed on Pentagon the nerve center of America’s military might, and a fourth one crashed in a field in Pennsylvania.

Within few hours, America’s sense of security was shattered abruptly and decisively. The President was flown from one bunker to the other, which were built during the cold war to protect the president from the thermo nuclear war.America quickly got over the initial shock and came out with tools to fight this new war, the congress hastily passed a plethora of legislation, to enhance the power of the executive branch to combat terrorism in all its form. With the action of 19 religious zealots the world has been torn asunder into us versus them, good versus evil.

The aftershock of this atrocious event on September 11 2001 has yet to end. Though the crash physically happened in NY, VA and PA the sound and fury has resonated around the world. Eradicating terror has become a world jihad (! ).The USA patriot act has given the executive branch sweeping powers in the name of fighting terror both within USA and the world. Many facets of this act have deeply concerned civil libertarians who believe that this is the slippery slope to the erosion of civil liberties.

At this point I will give an analysis of Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (H. R. 3162, The “USA Patriot Act”).

It was passed just six weeks after September 11 attack that this act was hastily passed in the house with 356-to-66 and in the senate 98-to-1.The bill is 342 pages long and makes changes to 15 existing statutes (www. Eff. org). It gives the president and DOJ an apparent carte blanche to fight terrorism. The fourth amendment states that: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.The fourth amendment, a cornerstone of America’s constitution, which we all pride, has been the victim of these sweeping changes in the recent enactment of USPA. Many people might think that before the enactment of USPA the law-enforcement authority did not have appropriate tool, if any to combat terror.

But if we go back a little further we see that USPA is basically an expansion of the parameters of Omnibus Crime Control and Safe Streets Act of 1968.What Congress basically did was broaden the scope of the 1968 statute in the USPA. Title III generally prohibits electronic eavesdropping on telephone conversations, face-to-face conversations, or computer and other forms of electronic communications, 18 U.

S. C. 2511″ (www.

fas. org). But it did give authorities a narrowly defined process for electronic surveillance to be used as last resort in serious criminal case, but the law enforcement authorities must show a “probable cause” before being granted the warrant.

After the September 11 terrorist attack congress felt that Title III came “replete with instructions describing the permissible scope of the surveillance as well as the conversations which may be seized and the efforts to be taken to minimize the seizure of innocent conversations, 18 USC 2518. ” (www. fas. org), which congress felt was a hindrance to law enforcement. Below Title III, the next tier of privacy protection covers some of those matters, which the Supreme Court has described as beyond the reach of the Fourth Amendment protection – telephone records, e-mail held in third party storage, and the like, 18 U. S. C.

2701-2709 (Chapter 121).Here, the law permits law enforcement access, ordinarily pursuant to a warrant or court order or under a subpoena in some cases, but in connection with any criminal investigation and without the extraordinary levels of approval or constraint that mark a Title III interception, 18 U. S. C. 2703.

Least demanding and perhaps least intrusive of all is the procedure that governs court orders approving the government’s use of trap and trace devices and pen egisters, a kind of secret “caller id”, which identify the source and destination of calls made to and from a particular telephone, 18 U. S. C. 3121-3127 (Chapter 206).

The orders are available based on the government’s certification, rather than a finding of the court, that the use of the device is likely to produce information relevant to the investigation of a crime, any crime, 18 U. S. C. 3123. The devices record no more than the identity of the participants in a telephone conversation,10 but neither the orders nor the results they produce need ever be revealed to the participants.

Pen Registers and Trap and Trace Devices. In section 216, the Act allows court orders authorizing trap and trace devices and pen registers to be used to capture source and addressee information for computer conversations (e. g. , e-mail) as well as telephone conversations, 18 U. S. C.

3121, 3123. In answer to objections that e-mail header information can be more revealing than a telephone number, it creates a detailed report to the court, 18 U. S. C.

3123(a)(3). Communications Records and Stored E-Mail.With respect to chapter 126, relating among other things to the content of stored e-mail and to communications records held by third parties, the law permits criminal investigators to retrieve the content of electronic communications in storage, like e-mail, with a search warrant, and if the communication has been in remote storage for more than 180 days without notifying the subscriber, 18 U. S. C.

2703(a),(b). A warrant will also suffice to seize records describing telephone and other communications transactions without customer notice, 18 U. S. C. 2703(c).

In the absence of the probable cause necessary for a warrant but with a showing of reasonable grounds to believe that the information sought is relevant to a criminal investigation, officers are entitled to a court order mandating access to electronic communications in remote storage for more than 180 days or to communications records, 18 U. S. C. 2703(b),(c). They can obtain a limited amount of record information (subscribers’ names and addresses, telephone numbers, billing records and the like) using an administrative, grand jury, or trial court subpoena, 18 U.

S. C. 2703(c)(1)(C). There is no subscriber notification in record cases.Elsewhere, the court may delay customer notification in the face of exigent circumstances or if notice is likely to seriously jeopardize the investigation or unduly delay the trial, 18 U. S. C. 2705.

At this point in time I will discuss the sections of USA Patriot Act that I feel is relevant to my telecommunication topic. As we can see that title III basically covered all the aspects of USA patriot Act but had more checks and balances in their implementation. What the USPA (US Patriot Act) does is expand on the existing statutes. I am including an analysis of USPA by Charles Doyle on USPA.Pen Registers and Trap and Trace Devices.

In section 216, the Act allows court orders authorizing trap and trace devices and pen registers to be used to capture source and addressee information for computer conversations (e. g. , e-mail) as well as telephone conversations, 18 U. S. C. 3121, 3123. In answer to objections that e-mail header information can be more revealing than a telephone number, it creates a detailed report to the court, 18 U. S.

C. 3123(a)(3).The use of pen registers or trap and trace devices was limited at one time to the judicial district in which the order was issued, 18 U. S. C. 3123 (2000 ed.

. Under section 216, a court with jurisdiction over the crime under investigation may issue an order to be executed anywhere in the United States, 18 U. S. C.

3123(b)(1)(C), 3127(2). Communications Records and Stored E-Mail.With respect to chapter 126, relating among other things to the content of stored e-mail and to communications records held by third parties, the law permits criminal investigators to retrieve the content of electronic communications in storage, like e-mail, with a search warrant, and if the communication has been in remote storage for more than 180 days without notifying the subscriber, 18 U.

S. C. 2703(a),(b).A warrant will also suffice to seize records describing telephone and other communications transactions without customer notice, 18 U.

S. C. 2703(c). In the absence of the probable cause necessary for a warrant but with a showing of reasonable grounds to believe that the information sought is relevant to a criminal investigation, officers are entitled to a court order mandating access to electronic communications in remote storage for more than 180 days or to communications records, 18 U. S.

C. 2703(b),(c).They can obtain a limited amount of record information (subscribers’ names and addresses, telephone numbers, billing records and the like) using an administrative, grand jury, or trial court subpoena, 18 U. S. C. 2703(c)(1)(C). There is no subscriber notification in record cases.

Elsewhere, the court may delay customer notification in the face of exigent circumstances or if notice is likely to seriously jeopardize the investigation or unduly delay the trial, 18 U. S. C. 2705.

In order to streamline the investigation process, the Act, in section 210, adds credit card and bank account numbers to the information law enforcement officials may subpoena from a communications service provider’s customer records, 18 U. S. C.

2703(c)(1)(C). Another streamlining amendment, section 220, eliminates the jurisdictional restrictions on access to the content of stored e-mail pursuant to a court order. Previously, only a federal court in the district in which the e-mail was stored could issue the order.Under section 220, federal courts in the district where an offense under investigation occurred may issue orders applicable “without geographic limitation,” 18 U. S. C.

2703. The Act, in section 209, treats voice mail like e-mail, that is, subject to the warrant or court order procedure, rather than to the more demanding coverage of Title III once required, United States v. Smith, 155 F. 3d 1050, 1055-56 (9th Cir. 1998). Finally, the Act resolves a conflict between chapter 121 and the federal law governing cable companies.

Government entities may have access to cable company customer records only under a court order following an adversary hearing if they can show that the records will evidence that the customer is or has engaged in criminal activity, 47 U. S. C. 511(h). When cable companies began offering telephone and other communications services the question arose whether the more demanding cable rules applied or whether law enforcement agencies were entitled to ex parte court orders under the no-notice procedures applicable to communications providers.

The Act makes it clear that the cable rules apply when cable television viewing services are involved and that the communications rules of chapter 121 apply when a cable company or anyone else provides communications services, section 211. Electronic Surveillance. To Title III’s predicate offense list, the Act adds cybercrime (18 U. S.

C. 1030) and several terrorists crimes, sections 201, 202.A second cybercrime initiative, section 217, permits law enforcement officials tointercept the communications of an intruder within a protected computer system (i.

e. a system used by the federal government, a financial institution, or one used in interstate or foreign commerce or communication), without the necessity of a warrantor court order, 18 U. S. C.

2511(2)(i).Yet only the interloper’s intruding communications, those to or from the invaded system, are exposed under the section. The Justice Department originally sought the change because the law then did not clearly allow victims of computer trespassing to request law enforcement assistance in monitoring unauthorized attacks as they occur. ” All these laws and statutes might obfuscate the readers in the class.So for simplicities purpose I have attached an addendum quoted from CDT.

ORG where a simplified reader friendly analysis of changes has been given of the sections of USPA relating to the telecommunication industry (it includes phones, cable, ISP etc) Civil libertarians are up in arm on the issue of USPA. They argue that Omnibus Crime Control and Safe Streets Act of 1968 were sufficient enough to combat terrorism. They would rather prefer the effective implementation of existing laws then create new draconian ones. They add that in an utter moment of hysteria and fear this act was passed without due discussions and public debate.The USPA is so new that it has been challenged once so far to my knowledge. “EPIC, joined by the ACLU and library and booksellers’ organizations, has filed suit under the Freedom of Information Act seeking the disclosure of information concerning implementation of the controversial USA PATRIOT Act.

The lawsuit covers some of the information the Justice Department recently withheld from the House Judiciary Committee. The litigation is still pending, so we have to watch and see what and how far the judiciary branch is going to accept or deny the USPA.This Act is a watershed in American jurisprudence. The ripples of this Act are yet to be felt. This act is already being used on foreign nationals and illegal immigrants. Nancy Chang senior litigation attorney wrote that “The USA PATRIOT Act launches a three-pronged assault on our privacy. First, the Act grants the executive branch unprecedented, and largely unchecked, surveillance powers, including the enhanced ability to track email and Internet usage, conduct sneak-and-peek searches, obtain sensitive personal records, monitor financial transactions, and conduct nationwide roving wiretaps.

Second, the Act permits law enforcement agencies to circumvent the Fourth Amendment’s requirement of probable cause when conducting wiretaps and searches that have, as “a significant purpose,” the gathering of foreign intelligence. Third, the Act allows for the sharing of information between criminal and intelligence operations and thereby opens the door to a resurgence of domestic spying by the Central Intelligence Agency” (http://www. ccr-ny. rg).She asserts that once when a “right” is eroded it is usually becomes permanent, she cites the decision in Kyllo v.

United States. “In Kyllo, the Supreme Court concluded that the use of an advanced thermal detection device that allowed the police to detect heat emanating from marijuana plants growing inside the defendant’s home constituted a “search” for the purposes of the Fourth Amendment and was presumptively unreasonable without a warrant.The Court placed great weight on the fact that the device was new, “not in general public use,” and had been used to “explore details of a private home that would previously have been unknowable without physical intrusion. ” Implicit in the Court’s holding is the principle that once a technology is in general public use and its capabilities are known, a reasonable expectation of privacy under the Fourth Amendment may no longer attach” (http://www. ccr-ny.

org).On tracking internet usage Nancy Chang writes “Unlike telephone communications, where the provision of dialing information does not run the risk of revealing content, email messages move together in packets that include both address and content information. Also, the question of whether a list of web sites and web pages that have been visited constitutes “dialing, routing, addressing and signaling information” or “content” has yet to be resolved. By providing no guidance on this question, Section 216 gives the government wide latitude to decide what constitutes “content.Of special concern is the fact that Section 216 authorizes the government to install its new Carnivore or DCS1000 system, a formidable tracking device that is capable of intercepting all forms of Internet activity, including email messages, web page activity, and Internet telephone communications. Once installed on an Internet Service Provider (ISP), Carnivore devours all of the communications flowing through the ISP’s network-not just those of the target of surveillance but those of all users-and not just tracking information but content as well.

The FBI claims that through the use of filters, Carnivore “limits the messages viewable by human eyes to those which are strictly included within the court order. “37 However, neither the accuracy of Carnivore’s filtering system, nor the infallibility of its human programers, has been demonstrated. While Section 216 requires the government to maintain a record when it utilizes Carnivore, this record need not be provided to the court until 30 days after the termination of the order, including any extensions of time.Section 216 is not scheduled to expire. ” (http://www.

ccr-ny. org/) ACLU on its analysis of the sections of the USPA that deals with telecommunication as a whole asserts “The wiretapping and intelligence provisions in the USA Patriot Act sound two themes: they minimize the role of a judge in ensuring that law enforcement wiretapping is conducted legally and with proper justification, and they permit use of intelligence investigative authority to by-pass normal criminal procedures that protect privacy.