Presentation on theme: "The Basics for Information Technologies and Higher Education"— Presentation transcript:
1 The Basics for Information Technologies and Higher Education The USA-Patriot ActThe Basics for Information Technologies and Higher Education
2 USA-Patriot Act: Basics Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism ActsSigned into law on October 26, 2001One of the longest pieces of emergency legislation passed in one of the shortest periods of time in American history
3 History of Emergency Acts and Government Actions Alien and Sedition Acts of 1790’sSuspension of Habeas Corpus during Civil WarAbrams: Muting of Free Speech during WWIRed Scare and Palmer Raids in post WWI period
4 History of Emergency Acts and Government Actions FDR, Great Depression New Deal LegislationInternment of Japanese during the WWIIBlacklisting and Congressional Hearings in the McCarthy, Anti-Communist Era, Post WWII eraWiretapping and general harassment of government critics in civil rights and Vietnam War era
5 USA-Patriot Act: Basics Ten Sections covering a variety of areas, including banking, money laundering, surveillance, border protection, victims’ support, information sharing within the infrastructure and the strengthening of criminal laws against terrorism.Severability clauseTo protect against the whole the potential constitutional violation of a single section
6 Definition of Terrorism Act divides definition into two partsForeignDomesticFor the purposes of our discussion, the definition for domestic terrorism is the more helpful to keep in mind.
7 Definition of Terrorism Domestic“the term `domestic terrorism' means activities…[that ] involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and occur primarily within the territorial jurisdiction of the United States.
8 Title I: Enhancing Domestic Security Against Terrorism Section 103: Increased funding for the Technical Support CenterAddition to established funding for section 811 of the Antiterrorism and Effective Death Penalty Act of 1996$200,000,000 addition each year for
9 Title I: Enhancing Domestic Security Against Terrorism Section 105: Expansion of National Electronic Crime Task Force InitiativeDirector of US Secret Service shall create national task force on the New York Electronic Crimes Task Force modelOperate throughout the United StatesFor the purpose of “preventing, detecting and investigating various forms of electronic crimes.”
10 Overview of Title II: Enhanced Surveillance Procedures Sharing of InformationLaw enforcement with federal agenciesObtaining RecordsFERPA (507 of Title V)FISAECPARewording to Include Electronic Communications“routing,” “network addresses,” “signaling”
11 Overview of Title II: Enhanced Surveillance Procedures Computer TrespassDeputizing owners and operators of ITNew Access“Rubber Stamp” and National Service for SubpoenasCompensationsFBI compensate ISPCivil actions for computer abuse over $5,000 (814 of Title VIII).
13 Family Education Records and Privacy Act Originally passed in 1974, subseq. amendedHistorical foundation in anti-war protests protection for students’ records, “transparency” and access of those records for the individual studentRecognize shift from in loco parentisAlready existing “health and safety” exception for the individual student
14 Family Education Rights and Privacy Act, 507 of Title V Patriot Act amends to permit educational institutions to disclose educational records to federal law enforcement officials without student consent:If a U.S. Assistant Attorney General, or similarly ranked official, obtains a court order relevant to terrorism investigationInstitution is not liable, and need not maintain a record of the transactionDistinct from the “health and safety” already existing exception directed to health and safety of others.
15 Ancillary to FERPA National Center for Education Statistics Federal officials can have access to survey information, which is otherwise held confidentialMonitoring of Foreign StudentsFull implementation of existing Immigration and Naturalization Service law regarding information about students
16 Foreign Intelligence Surveillance Act 1978 Early recognition, if not prescience, about the potential for terrorist activities on American soil or affecting American interests internationallyForeign relations exception to the legislative directions towards privacy as a result of the Church Committee and reflected in acts such as Freedom of Information Act and Family Educational Records Privacy Act
17 Foreign Intelligence Surveillance Act FISA Court (pre-Patriot Act)Seven federal judgesPost Patriot Act: eleven and with residence restrictions in contemplation of an increase in requests and need for quick process of themMeet in closed sessionContent of applications permanently closedOnly statistics, and annual vice-president’s report to Congress of applications and approved.Example of Moussaoui Flight School caseResults in search warrant or subpoenaPost Patriot Act: reduced standard for approval
18 Patriot Act: Section 501 Amendments of FISA Business RecordsFBI can seize with a court order certain business records pursuant to an investigation of “international terrorism or other clandestine intelligence activities…”Prohibits record keeper to disclosure FBI action to anyone “other than those persons necessary to produce the tangible things under this section…”Investigation “not to be conducted of a United States person solely upon the basis of activities protected by the first amendment…”
19 Patriot Act Amendments of FISA Query: Does this mean I can’t tell my supervisor?Chain of commandChain of custodyBut not outside of that loop!Potential for constitutional challenge under free speech?The “whistleblower’s” ethical dilemma
20 Electronic Communications Privacy Act of 1986 What is it?Wiretapping Act for the InternetWhat is the “Wiretapping Act?”Olmstead 1928Katz 1967Omnibus Crime Control and Safe Streets Act of 1968 is the actual “Wiretapping Act”ECPA brings those same legal protections of telephonic communications to electronic environment
21 ECPA: What Does It Protect? Ideally the privacy of communications in electronic mediaPre-Patriot Act list of exceptionsUsual course of businessBut not disclosure to third partiesWireless: distinction between listening and disclosingAuthorized law enforcementCourt or Administrative OrderSearch Warrant or SubpoenaExecutive Order Letter
22 ECPA: To Whom Does It Apply? Statutory Language:“…providers of Internet service to the public”Does it apply to colleges and universities?No case law on pointAnderson Consulting: EPCA does not applyDigital Millennium Copyright Act as potential “safe harbor” model of distinction between students and staff/faculty?Areas where there is service to the public, i.e. list serves?General RuleAct as if it does, but hold question as potential defense
23 Patriot Act Amendments of ECPA New “emergency” disclosure“Imminent danger to life and limb”New “required disclosure”“Rubber-stamping subpoenas”Below “probable cause”“Routing:” Pen registers and trap and trace devicesContent is the constitutional question
24 Required Disclosure: Voice Mail 209 Patriot Act/2703 Pre-Patriot ActObtainable only through highest level of court order corresponding to transmission (real time) of communicationsLike telephone wiretap orderPost PatriotNow obtainable like anyStill with court order, but lower standard
25 Nation-Wide Service for Electronic Search Warrants Creates a “national subpoena” obtainable from magistrates in federal district courts which can be extended to any other jurisdictioni.e. if FBI in Washington want something in California, they can apply for warrant in Washington federal court and have it apply to California.
26 Patriot Act Amendments of ECPA Computer TrespassOwner/Operator consent for federal interventionSo long as owner/operator reasonably believes investigation is relevant to computer trespassInvestigation of it and no otherNo authorization requiredNo limits set, e.g. stopNo restraint on return with authorization based on information gathered during the invited investigationNo guarantee it is constitutionalSunset provision
27 What is Purpose of New Computer Trespass? Sections 217(1) and (2) simply alleviates owners and operators of protected computers of potential ECPA liability for their investigations and/or disclosures under certain circumstances.Facilitate communications between networks – private and public – and federal law enforcement
28 So What is the Worry?Autonomy of higher education to maintain its networksThe “router” and the FBI storyFine line between requesting and inquiry?IP hopping or rogue scans as signHelpful call from federal law enforcementDiminution of Fourth Amendment:No “probable cause”No “judicial oversight”No “reasonable expectation of privacy” means no exclusionary rule in court
29 Areas of Potential Abuse and/or Concern ConstitutionalFirst Amendment; speechFourth, Fifth and Sixth criminal procedureSeparation of powers (agencies as 4th branch)PrivacyColleges/University AutonomyFISA “business records”FERPA new exceptionECPA disclosures
30 Areas of Potential Abuse and/or Concern FederalismNational serviceCase law definitions“Public”“Emergency”“Color of law”“Network Addresses,” “Routing,” “Customer Information”Deputized “Owner”Computer TrespassPolicy and Procedure
31 What Must Be Done? Work together to address crime and terrorism Maintain free speech and inquiryHold forth on our constitutional protectionsImport that sensibility of constitutional protections and due process into internal policies and proceduresWatch and react politically depending on how this legislation makes its way into the daily life of American society
32 ConclusionPolicy, protocols and procedures that engage the law in concert with the special mission of American higher education and the particular cultures of our colleges and universities go a long way to preserve our traditional autonomy.