NC State University - March David Drooz1 USA PATRIOT Federal anti- terrorism law Effective October 26, 2001 December 31, 2005, sunset for some of the surveillance provisions Additional laws and regs will be enacted

2 USA PATRIOT Major areas for higher education 1. Biological agents and toxins 2. Reporting info on foreign students 3. FERPA change 4. Surveillance / release of records

3 1. Biological Weapons statute PATRIOT amendment makes it unlawful to “knowingly possess any biological agent, toxin, or delivery system of a type or in a quantity that…is not reasonably justified by a…bona fide research or other peaceful purpose.”

4 1. Biological Weapons statute Intent to use as weapon is no longer required Up to 10 years in prison Does not apply to agent or toxin in naturally occurring environment (i.e., it’s not been cultivated or extracted)

5 1. Biological Weapons statute “Biological agent" = any micro-organism, virus, infectious substance, or biological product…capable of causing-- (A) death, disease, or other biological malfunction in…another living organism; (B) deterioration of food, water, equipment, supplies, or material of any kind; or (C) deleterious alteration of the environment

6 1. Biological Weapons statute Another PATRIOT amendment: Some biological agents are “select agents” “Restricted persons” cannot transport, ship, possess, or receive select agents Up to 10 years in prison for violation

7 1. Biological Weapons statute “Restricted persons” = Indicted or convicted of crime that’s punishable by over 1 year in prison Fugitive from justice Unlawful user of controlled substance Illegal alien Continued…

8 1. Biological Weapons statute “Restricted persons” = Has been committed to mental institution or adjudicated as “mental defective” Is from a country designated as a terrorist state (Iran, Iraq, Syria, Libya, North Korea, Cuba, Sudan) and is not a permanent resident of USA Has dishonorable discharge from military

9 1. Biological Weapons statute Punishment is for violations by the restricted person, not the institution NCSU: warn persons with access to select agents about the restricted categories NCSU: plans for criminal background checks. No plans for checking other types of restricted categories

10 1. NC law on biological agents New NC statute and regulations supplement PATRIOT Creates a “biological agents registry” Must report changes in select agent info to HHS within 7 days Not a public record Must comply with federal regulatory safeguards

11 1. Biological Weapons statute Environmental Health and Safety office coordinates compliance for NCSU on the biological agents requirements David Rainer Human Resources is setting up criminal checks (Terree Kuiper )

12 2. Foreign student reporting requirements Old law required US Attorney General to set up an electronic system for collecting info on non-immigrant foreigners with F, M, and J visas. PATRIOT provides funding to get this going. Once the software is running (by Jan 2003), universities will have to report info.

13 2. Foreign student reporting requirements Report: Identity and current address Visa classification and dates of issuance/extension Current academic status (full or part time; compliance with terms of exchange program, etc.) University discipline action, or change in participation in an exchange program, as a result of criminal conviction Date of entry and port of entry

14 2. Foreign student reporting requirements Office of International Scholars and Students (Michael Bustle) will handle the reporting for NC State OISSS also handles other reporting on foreign students, as required by INS regulations

15 3. PATRIOT & student records Amends FERPA - law on student privacy US Attorney General may get ex parte court order to collect education records for terrorism investigation University not required to record the disclosure University has good faith immunity

16 4. Surveillance / release of records Expands law enforcement surveillance rights through amendments to: Wiretap / stored communications laws Pen register / trap and trace laws Foreign Intelligence Surveillance Act Federal Rules of Criminal Procedure

17 4. Surveillance / release of records Tools for surveillance: Wiretap – interception of oral, wire, or electronic communications Pen registers / Trap and trace – devices that record phone numbers dialed out or dialed into a line Internet/computer gathering devices E.g., Carnivore and Magic Lantern

18 4. Surveillance / release of records Objects of surveillance: Stored communications Communications in transit Computer files User data (subscriber records)

19 4. Surveillance / release of records Source of authority for surveillance request: Public records request – anyone Subpoena - court, attorney, or authorized official Search warrant – court (or AG for FISA) Pen/trap order - court Wiretap order – court (or AG for FISA)

20 4. Surveillance / release of records Each type of surveillance or records request must satisfy different statutory criteria Low threshold for approval of surveillance of “foreign intelligence activities.” Approval comes from a special federal court that operates secretly (or just from Attorney General if target is a foreign power)

21 4. Surveillance / release of records Summary of PATRIOT changes to surveillance 1. Hacking: ISPs can now request law enforcement help when intercepting communications of a computer trespasser. No court order needed. 2. Hacking, etc.: Wiretap orders can now be issued to cover violations of Computer Fraud and Abuse Act, Chemical Weapons law, and Anti-terrorism law

22 4. Surveillance / release of records 3. Voic – can now be seized with search warrant (like ) instead of wiretap order. 4. Subscriber information – ISPs must divulge info about users in response to administrative subpoena

23 4. Surveillance / release of records 5. Emergencies – ISPs serving the public may disclose content and non-content records of electronic communications to law enforcement to respond to threat of immediate danger of death or serious injury. Also to protect the rights and property of the ISP 6. Nationwide service - search warrants for stored electronic communications now have effect nationally (doesn’t have to be from local court). (For <180 days old.)

24 4. Surveillance / release of records 7. Pen register / trap and trace devices Now for electronic communications as well as phones. Connection records only – not content! Court order is valid nationwide; need not name the ISP. ISP can demand that law enforcement certify the order applies to the ISP. This is a big deal. E.g., supports Carnivore.

25 4. Surveillance / release of records 8. FISA controls surveillance of foreign intelligence Foreign intelligence = info related to sabotage, espionage, terrorism or other hostile acts by agent of foreign power Lesser requirements for law enforcement to meet than for regular wiretaps, pen/traps, and searches

26 4. Surveillance / release of records 8. FISA continued… FISA now says that “foreign intelligence” must be a “significant purpose” instead of “the purpose” of surveillance or search Allows roving (nationwide) wiretaps – a provider can be required to assist even though not named in the order or subpoena Good faith immunity for providers who assist with a court order or request under FISA

27 4. Surveillance / release of records 8. FISA continued… FBI can get court order for production of business records To investigate international terrorism or clandestine intelligence Now applies to all businesses, even universities The order and disclosure must be kept secret

28 4. Surveillance / release of records 9. Search warrants – May be issued from anywhere terrorism has occurred, no longer has to issue in district where search is to occur Court may allow a “reasonable time” before police must tell target that search has occurred

29 4. Surveillance / release of records 10. PATRIOT does not impose any new technology requirements on providers Reasonable compensation is available to a provider who furnishes law enforcement with facilities or technical assistance in connection with a pen/trap order

30 Conclusion Biological agents Keep track of “biological agents” & limit quantities Keep track of who has access to select agents Call Environmental Health & Safety for info Surveillance Ask that all requests for surveillance or records be in writing Consult immediately with the Office of Legal Affairs