Breadcrumb Navigation:
Compliance
with the USA PATRIOT Act and related measures
April, 2002 -- David Drooz, Associate General Counsel
- Overview
- USA PATRIOT is an anti-terrorism law. It expands the
power of law enforcement agencies to investigate and prosecute
persons who may be involved in terrorist activity or who
are in categories deemed to be high risk (like foreign
students).
- USA PATRIOT is an acronym for: Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001
- Signed into law on October 26, 2001. Some of the surveillance
provisions sunset on December 31, 2005, except for investigation
of offenses that occur before that sunset date.
- PATRIOT is long (165 different sections, 300-some pages)
and hard to read because much of it refers to word changes
in other laws that are cited but not provided.
- Additional anti-terrorism legislation is pending in
Congress. Federal regulations and guidelines to implement
USA PATRIOT will also be forthcoming in the near future.
This is a rapidly evolving area of law.
- Call Legal: University employees who receive
requests for information or assistance related to surveillance
(wiretaps, computer file searches, etc.) or related to
production of records should immediately forward the requests
to the university legal office.
- Changes that have a major impact on higher education
- Biological agents and toxins.
- It’s now a crime to knowingly possess “any
biological agent, toxin, or delivery system of a type
or in a quantity” that is not justified for peaceful
purposes, such as research. Note that quantity restrictions
are important.
- It is a crime for persons in the following categories
to possess or transport certain biological agents and
toxins (“select agents”). The restricted categories
are anyone who:
- is under indictment for a crime punishable by imprisonment
for a term exceeding 1 year;
- has been convicted in any court of a crime punishable
by imprisonment for a term exceeding 1 year;
- is a fugitive from justice;
- is an unlawful user of any controlled substance;
- is an alien illegally or unlawfully in the United
States;
- has been adjudicated as a mental defective or has
been committed to any mental institution;
- is an alien (other than an alien lawfully admitted
for permanent residence) who is a national of a country
which the Secretary of State has determined is repeatedly
supporting international terrorism (currently Cuba,
Syria, North Korea, Iran, Iraq, Libya, and Sudan);
or
- has been discharged from the Armed Services of the
United States under dishonorable conditions.
- North Carolina law now requires persons who possess
select agents to register them with the Department of
Health and Human Services, and to safeguard the select
agents. Changes in select agents must be reported within
7 days. This is confidential.
- Proposed legislation could require costly new safeguards.
- Environmental Health and Safety has taken responsibility
for this. Contact them (515-4238) about lab security
procedures. Human Resources is assisting with criminal
background checks.
- Collecting and Reporting Information on Foreign Students
- PATRIOT provides funding and orders the US Attorney
General to implement a dormant program for computerized
reporting of information on non-immigrant foreigners
with F, M, and J visas. The federal government must
get the computer program operational, before universities
can comply. Could result in new costs assessed to foreign
students.
- This is the information we will need to report once
the feds are up to speed:
- identity and current address;
- visa classification and issuance/extension dates;
- current academic status (e.g., full-time student;
satisfaction of the terms of an exchange program);
- university disciplinary action, or change in student’s
participation in an exchange program, as a result
of conviction of a crime; and
- date and port of entry.
- The Office of International Scholars and Students
will take responsibility for this. They already collect
similar information pursuant to INS requirements.
- Surveillance and Disclosure of Records
- Amendment to FERPA – student privacy law
The US Attorney General may obtain an ex parte court
order to acquire student records in terrorism investigations.
The university is not required to disclose the existence
of the order to the student.
- Business records
The FBI may get a court order for “business records”
relevant to terrorism or espionage investigations. “Business
records” could be about anything maintained by
the university. It’s not clear, but this may override
all other confidentiality provisions, including privacy
of library user records, medical records, personnel
records, and student records. Whoever receives such
a court order must keep its existence confidential.
- Electronic surveillance
- US Attorney General’s wiretap authority (pursuant
to court order) is expanded into investigations of
chemical weapons, terrorism, and computer hacking
violations.
- Pen registers and trap and trace authority is expanded
to cover electronic communications, not just phone
records. This gives federal officials, pursuant to
court order, the ability to check computer connection
records under trap and trace law. These court orders
may be issued nationwide.
- Federal officials can now use a search warrant
to obtain stored voice mails.
- Electronic communication services and remote computing
services (e.g., a university) may be required to provide
the following information about subscribers, when
a government entity requests it by means of administrative
subpoena, court order, or warrant:
- name;
- address;
- local and long distance telephone connection records,
or records of session times and durations;
- length of service (including start date) and types
of service utilized;
- telephone or instrument number or other subscriber
number or identity, including any temporarily assigned
network address; and
- means and source of payment for such service (including
any credit card or bank account number).
- The law now allows interception of computer trespasser
(meaning an unauthorized user) communications to,
from, or through a “protected computer”
(including any computer connected to the Internet),
without a warrant or court order, for purposes of
an “investigation” (presumably for law enforcement),
provided there is no interception except communications
of the trespasser, and provided the owner/operator
of the computer agrees.
- The new laws support federal government authority
to install “Carnivore” and “Magic Lantern”
type programs to collect information from users of
the Internet.
- Helpful changes regarding surveillance
- No one, including providers of wire or electronic
communication services, is obligated by the provisions
of the PATRIOT Act to furnish facilities or technical
assistance beyond what was already required in the law.
With respect to pen registers and trap and trace devices,
persons who provide facilities or technical assistance
may be reasonably compensated.
- There is now immunity for a person who “furnishes
any information, facilities, or technical assistance
in accordance with a court order or request for emergency
assistance under this [Foreign Intelligence Surveillance]
Act.”
- Practices
Promptly send all surveillance and information requests
to the Office of Legal Affairs.
- USA PATRIOT is an anti-terrorism law. It expands the
power of law enforcement agencies to investigate and prosecute
persons who may be involved in terrorist activity or who
are in categories deemed to be high risk (like foreign
students).
- USA PATRIOT is an acronym for: Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001
- Signed into law on October 26, 2001. Some of the surveillance
provisions sunset on December 31, 2005, except for investigation
of offenses that occur before that sunset date.
- PATRIOT is long (165 different sections, 300-some pages)
and hard to read because much of it refers to word changes
in other laws that are cited but not provided.
- Additional anti-terrorism legislation is pending in
Congress. Federal regulations and guidelines to implement
USA PATRIOT will also be forthcoming in the near future.
This is a rapidly evolving area of law.
- Call Legal: University employees who receive
requests for information or assistance related to surveillance
(wiretaps, computer file searches, etc.) or related to
production of records should immediately forward the requests
to the university legal office.
- Biological agents and toxins.
- It’s now a crime to knowingly possess “any
biological agent, toxin, or delivery system of a type
or in a quantity” that is not justified for peaceful
purposes, such as research. Note that quantity restrictions
are important.
- It is a crime for persons in the following categories
to possess or transport certain biological agents and
toxins (“select agents”). The restricted categories
are anyone who:
- is under indictment for a crime punishable by imprisonment
for a term exceeding 1 year;
- has been convicted in any court of a crime punishable
by imprisonment for a term exceeding 1 year;
- is a fugitive from justice;
- is an unlawful user of any controlled substance;
- is an alien illegally or unlawfully in the United
States;
- has been adjudicated as a mental defective or has
been committed to any mental institution;
- is an alien (other than an alien lawfully admitted
for permanent residence) who is a national of a country
which the Secretary of State has determined is repeatedly
supporting international terrorism (currently Cuba,
Syria, North Korea, Iran, Iraq, Libya, and Sudan);
or
- has been discharged from the Armed Services of the
United States under dishonorable conditions.
- North Carolina law now requires persons who possess
select agents to register them with the Department of
Health and Human Services, and to safeguard the select
agents. Changes in select agents must be reported within
7 days. This is confidential.
- Proposed legislation could require costly new safeguards.
- Environmental Health and Safety has taken responsibility
for this. Contact them (515-4238) about lab security
procedures. Human Resources is assisting with criminal
background checks.
- Collecting and Reporting Information on Foreign Students
- PATRIOT provides funding and orders the US Attorney
General to implement a dormant program for computerized
reporting of information on non-immigrant foreigners
with F, M, and J visas. The federal government must
get the computer program operational, before universities
can comply. Could result in new costs assessed to foreign
students.
- This is the information we will need to report once
the feds are up to speed:
- identity and current address;
- visa classification and issuance/extension dates;
- current academic status (e.g., full-time student;
satisfaction of the terms of an exchange program);
- university disciplinary action, or change in student’s
participation in an exchange program, as a result
of conviction of a crime; and
- date and port of entry.
- The Office of International Scholars and Students
will take responsibility for this. They already collect
similar information pursuant to INS requirements.
- Surveillance and Disclosure of Records
- Amendment to FERPA – student privacy law
- Business records
- Electronic surveillance
- US Attorney General’s wiretap authority (pursuant
to court order) is expanded into investigations of
chemical weapons, terrorism, and computer hacking
violations.
- Pen registers and trap and trace authority is expanded
to cover electronic communications, not just phone
records. This gives federal officials, pursuant to
court order, the ability to check computer connection
records under trap and trace law. These court orders
may be issued nationwide.
- Federal officials can now use a search warrant
to obtain stored voice mails.
- Electronic communication services and remote computing
services (e.g., a university) may be required to provide
the following information about subscribers, when
a government entity requests it by means of administrative
subpoena, court order, or warrant:
- name;
- address;
- local and long distance telephone connection records,
or records of session times and durations;
- length of service (including start date) and types
of service utilized;
- telephone or instrument number or other subscriber
number or identity, including any temporarily assigned
network address; and
- means and source of payment for such service (including
any credit card or bank account number).
- The law now allows interception of computer trespasser
(meaning an unauthorized user) communications to,
from, or through a “protected computer”
(including any computer connected to the Internet),
without a warrant or court order, for purposes of
an “investigation” (presumably for law enforcement),
provided there is no interception except communications
of the trespasser, and provided the owner/operator
of the computer agrees.
- The new laws support federal government authority
to install “Carnivore” and “Magic Lantern”
type programs to collect information from users of
the Internet.
- Helpful changes regarding surveillance
- No one, including providers of wire or electronic
communication services, is obligated by the provisions
of the PATRIOT Act to furnish facilities or technical
assistance beyond what was already required in the law.
With respect to pen registers and trap and trace devices,
persons who provide facilities or technical assistance
may be reasonably compensated.
- There is now immunity for a person who “furnishes
any information, facilities, or technical assistance
in accordance with a court order or request for emergency
assistance under this [Foreign Intelligence Surveillance]
Act.”
- Practices
The US Attorney General may obtain an ex parte court order to acquire student records in terrorism investigations. The university is not required to disclose the existence of the order to the student.
The FBI may get a court order for “business records” relevant to terrorism or espionage investigations. “Business records” could be about anything maintained by the university. It’s not clear, but this may override all other confidentiality provisions, including privacy of library user records, medical records, personnel records, and student records. Whoever receives such a court order must keep its existence confidential.
Promptly send all surveillance and information requests to the Office of Legal Affairs.