Compliance with the USA PATRIOT Act and related measures
April, 2002 -- David Drooz, Associate General Counsel

  1. Overview

    2.
    1. 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).

    2. USA PATRIOT is an acronym for: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001

    3. 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.

    4. 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.

    5. 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.

    6. 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.

  2. Changes that have a major impact on higher education

    3.
    1. Biological agents and toxins.

      2.
      1. 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.

      2. 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:

        1. is under indictment for a crime punishable by imprisonment for a term exceeding 1 year;

        2. has been convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year;

        3. is a fugitive from justice;

        4. is an unlawful user of any controlled substance;

        5. is an alien illegally or unlawfully in the United States;

        6. has been adjudicated as a mental defective or has been committed to any mental institution;

        7. 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

        8. has been discharged from the Armed Services of the United States under dishonorable conditions.

      3. 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.

      4. Proposed legislation could require costly new safeguards.

      5. 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.

    2. Collecting and Reporting Information on Foreign Students

      3.
      1. 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.

      2. This is the information we will need to report once the feds are up to speed:

        1. identity and current address;

        2. visa classification and issuance/extension dates;

        3. current academic status (e.g., full-time student; satisfaction of the terms of an exchange program);

        4. university disciplinary action, or change in student’s participation in an exchange program, as a result of conviction of a crime; and

        5. date and port of entry.

      3. The Office of International Scholars and Students will take responsibility for this. They already collect similar information pursuant to INS requirements.

    3. Surveillance and Disclosure of Records

      4.
      1. Amendment to FERPA – student privacy law

        2. 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.

      2. Business records

        3. 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.

      3. 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:

          1. name;

          2. address;

          3. local and long distance telephone connection records, or records of session times and durations;

          4. length of service (including start date) and types of service utilized;

          5. telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and

          6. 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.

      4. 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.”

    4. Practices
      5.

      Promptly send all surveillance and information requests to the Office of Legal Affairs.