Telecommunications Law the USA Patriot Thesis
- Length: 25 pages
- Subject: Criminal Justice
- Type: Thesis
- Paper: #39332451
Excerpt from Thesis :
The law's intended purpose of preventing and detecting future attacks was the dominant concern of lawmakers. Yet, the hasty manner in which the law passed through Congressional lawmaking processes causes opponents to argue that lawmakers gave disproportionate consideration to the law enforcement and intelligence community's viewpoint in drafting the provisions. It is thought that in the future the law will face many challenges in the court system. Even though the security concerns of the United States may have temporarily overridden these challenges, it is possible that certain controversial provisions of the law may not withstand judicial challenges in the future (Patriot Act, 2009).
Communications networks are often thought of as a defining feature of modem life. Hundreds of millions of Americans use the postal system, the telephone network, and the Intemet to communicate with each other everyday. Although these technologies differ from each other in important ways, they share one common function. They are all global communications networks that allow users to send, receive, and store information. Communications networks can also provide an arena for the commission of criminal acts. Networks can be used by criminals to contact co-conspirators, deliver threats, further frauds, or engage in many other criminal activities. When communications networks are used to promote crimes, the network itself becomes a crime scene. Telephone records, stored emails, and undelivered packages can often contain important clues to be used by law enforcement. Just like in a physical neighborhood, the networks themselves become surveillance zones, complete with criminals that are seeking to evade detection by the police that are trying to catch them. A basic framework is necessary to understand the legal rules that apply to the surveillance of communications networks such as the Internet, the postal network, or the telephone network (Kerr, 2003).
The basic purpose of a communications network is to send and receive communications. As a result, every communications network features two types of information: the contents of communications, and the addressing and routing information that the networks use to deliver the contents of communications. The first part is known as content information and the second part is the envelope information. The distinction between content and envelope information remains constant across many different technologies. With postal mail, the content information is the letter itself, stored safely inside its envelope. The envelope information is the information that is on the outside of the envelope, including the mailing and return addresses, the stamp and postmark, and the size and weight of the envelope when sealed. The distinction is very similar for telephone conversations. The content information for a telephone call is the actual conversation between participants that can be captured by an audio recording of the call. The envelope information includes the number the caller dials, the number from which the caller dials, the time of the call, and its duration. This calling information is not visible in the same way that the envelope of a letter is, but it compares roughly with the information derived from the envelope of a letter. In both cases, the envelope information contains to-and-from addressing, data about the time the communication was sent, and information about the communication's size and length (Kerr, 2003).
Legal rules that govern the surveillance of communications networks are generally divide into two types: rules that concern government surveillance of the network for law enforcement purposes, and rules that govern the network providers who may conduct surveillance of their own and wish to disclose the information to the government. In any communications network, the service provider who administers each segment of the network is responsible for that portion of the network. A network can have a single provider like the United States Postal Service. The Postal Service enjoys a statutory monopoly over the United States postal mail system. Most networks however are much decentralized. The Internet provides a clear example of a highly decentralized network. No one owns the Intemet as a whole. Instead, thousands of independent Intemet service providers (ISPs) each administer small comers of the network. Rules governing provider surveillance are quite important because providers often need to look at their comer of the network for a variety of business related reasons. One is example is that the phone company may need to keep records of calls for long-distance billing (envelope surveillance) or may need to listen to calls on occasion to combat telephone fraud or assess the quality of the line (content surveillance). Just the same, ISPs may need to maintain email logs, or intercept communications in transit to determine the source of a network problem or search out an unauthorized intruder. Many times providers discover evidence of a crime on their own and report it to law enforcement officials (Kerr, 2003).
The passage of the U.S.A. Patriot Act on October 26, 2001 has been widely portrayed as a dark moment for the civil liberties of Internet users. The ACLU declared that the Act gave law enforcement astonishing new powers. Another civil liberties group, the Electronic Frontier Foundation, announced that the civil liberties of ordinary Americans have taken a tremendous blow with this law (Kerr, 2003). They believe this because of the provisions that deal with the right to privacy in our online communications and activities. And even thought there is no evidence that our previous civil liberties posed a barrier to the effective tracking or prosecution of terrorists, they are upset with the fact, that in asking for these broad new powers, the government has not shown that previous powers given to law enforcement and intelligence agencies to spy on U.S. citizens were insufficient in allowing them to investigate and prosecute acts of terrorism. The processes that lead to the passage of the bill did little to ease these concerns. On the contrary, civil liberties groups feel that they were amplified by the inclusion of so many provisions that, instead of being aimed at terrorism, are aimed at nonviolent, domestic crimes (EFF Analysis of the Provisions of the U.S.A. PATRIOT Act, 2003).
The Patriot Act expands all four traditional tools of surveillance that is used by law enforcement. These include wiretaps, search warrants, pen/trap orders and subpoenas. Their equivalents under the Foreign Intelligence Surveillance Act (FISA) that allow spying by foreign intelligence agencies have similarly been expanded as well. This means that the government may now monitor the online activities of Americans, and track what Web sites a person reads. The person being spied on does not have to be the target of the investigation. This application must be granted and the government is not obligated to report to the court or tell the person spied upon (EFF Analysis of the Provisions of the U.S.A. PATRIOT Act, 2003).
The Patriot Act allows the FBI and CIA to go from phone to phone and computer to computer without showing that each is being used by a suspect or target of an order, or even specifically identifying the person targeted. The act allows the government to serve a single Title III wiretap, FISA wiretap or pen/trap order on any person or entity nationwide, regardless of whether that person or entity is named in the order. The government does not have to make any showing to a court that the particular information or communication to be acquired is relevant to a criminal investigation. In the case of pen/trap or FISA situations, they do not have to report where they served the order or what information they received from it. The EFF believes that the opportunities for abuse of these broad new powers are tremendous. In regards to pen/trap orders, while ISPs or others who are not specifically named in the order do have the legal right to request certification from the Attorney General's office that the order applies to them, they have no right to request such confirmation from a court (EFF Analysis of the Provisions of the U.S.A. PATRIOT Act, 2003).
The law made two changes in order to increase how much information the government may obtain about users from their ISPs or others who handle or store their online communications. First off it allows ISPs to voluntarily hand over all non-content information to law enforcement with no need for any court order or subpoena and second, it expands the records that the government may seek with a simple subpoena to include records of session times and durations, temporarily assigned network (I.P.) addresses, and means and source of payments, including credit card or bank account numbers (EFF Analysis of the Provisions of the U.S.A. PATRIOT Act, 2003).
The EFF feels that several provisions of the Patriot Act have no apparent connection to preventing terrorism. These include: Government spying on suspected computer trespassers with no need for court order. Being able to add samples to DNA database for those convicted of any crime of violence. This provision allows for the collection of DNA for terrorists, but also allows collection for the broad, non-terrorist category of any crime of violence. Wiretaps are now allowed…