Civil Liberties
From ABA  Individual Rights & Responsibilities Section - Human Rights - Winter 2002
By John Podesta USA Patriot Act: The Good, the Bad, and the Sunset
Excerpted Passages
Section 216

The Patriot Act substantially changes the law with respect to law enforcement access to information about computer use including Web surfing. Reaching for an analogy from the old rotary dialed telephone system, the Act extends provisions written to authorize installation of pen registers and trap and trace devices, which record outgoing and incoming phone numbers, to authorize the installation of devices to record all computer routing, addressing, and signaling information. The government can get this information with a mere certification that the information likely to be obtained is relevant to an ongoing criminal investigation.

Today, with more than fifty million U.S. households online, when more than 1.4 billion e-mails change hands every day, when computer users surf the Web and download files using phone lines, mobile devices, and cable modems, the government can learn a tremendous amount of information about you from where you shop to what you read to who your friends are through the use of so-called transactional records. The potential for abuse, for invasion of privacy, and for profiling citizens is high. That’s why it is disappointing that the authors of this provision settled for an incredibly weak standard of judicial oversight. A better analogy might have been to the provision of the Electronic Communications Privacy Act governing access to the stored records of Internet service providers, which permits a judge to satisfy herself that there are specific and articulable facts that the information sought is relevant and material to the ongoing investigation. This is a provision that Congress should review as part of its sunset process and amend.

Section 203

Previously, domestic law enforcement and foreign intelligence collection operated on separate tracks. This separation was seen as necessary because of the very different legal regimes that are associated with domestic law enforcement and foreign intelligence collection. The events of September 11, which involved several individuals who had lived in our country for some time, made it clear that more cooperation between domestic law enforcement and foreign intelligence collection was necessary. Section 203 facilitates this cooperation by allowing "foreign intelligence information" gathered in criminal investigations by domestic law enforcement to be shared with the intelligence community. In this manner, section 203 enables the intelligence community access to critical information that might otherwise be unavailable.

Section 206

The Foreign Intelligence Surveillance Act (FISA) facilitates domestic intelligence gathering related to foreign powers by allowing the collection of such information without the legal restrictions associated with domestic law enforcement. Section 206 of the Patriot Act modernizes FISA wiretap authority. Previously, FISA required a separate court order be obtained for each communication carrier used by the target of an investigation. In the era of cell phones, pay phones, e-mail, instant messaging, and BlackBerry wireless e-mail devices such a requirement is a significant barrier in  monitoring an individual’s communications. Section 206 allows a single wiretap to legally "roam" from device to device, to tap the person rather than the phone. In 1986, Congress authorized the use of roaming wiretaps in criminal investigations that are generally subject to stricter standards than FISA intelligence gathering, so extending this authority to FISA was a natural step.

The main difference between roaming wiretaps under current criminal law and the new FISA authority is that current criminal law requires that law enforcement "ascertain" that the target of a wiretap is actually using a device to be tapped. Section 206 contains no such provision. Ensuring that FISA wiretaps only roam when intelligence officials "ascertain" that the subject of an investigation is using a device, before it is tapped, would prevent abuse of this provision. For example, without the ascertainment requirement, it is conceivable that all the pay phones in an entire neighborhood could be tapped if suspected terrorists happened to be in that neighborhood. Bringing FISA roaming wiretaps in line with criminal roaming wiretaps would prevent such abuse and provide greater protection to the privacy of ordinary Americans.

Section 213

The 1986 Electronic Communications Privacy Act granted the government the authority to delay notification for search of some forms of electronic communications that are in the custody of a third party. Section 213 statutorily extends the ability of law enforcement to delay the notice to any physical or electronic search with a showing that notice would create an "adverse result." This provision is an effort to improve the government’s ability to investigate suspected terrorists by granting law enforcement greater leeway to operate clandestinely. To a large extent, section 213 simply codifies existing law enforcement practice in a manner consistent with recent court decisions. Nevertheless, the "adverse result" standard (defined in 18 U.S.C. § 2705), by virtue of its ambiguity, creates the potential for abuse. As a result, section 213, which is not currently subject to the four-year sunset contained in the Act, should, nevertheless, be carefully reviewed at that time.

Section 217

If someone unlawfully enters your home, you can ask the police to enter your premise without a warrant to investigate. Section 217 clarifies that similar authority applies to "computer trespassers." This allows law enforcement, with the permission of the owner of a computer, to monitor a trespasser’s action without obtaining an order for a wiretap. This provision constrains the ability of hackers to use computers without being detected.

Although most law-abiding computer users’ online activities will not be monitored by the government as a result of section 217, the new authority may be overbroad. A "computer trespasser" is defined as anyone who accesses a protected computer (which includes any computer connected to the Internet) without authorization. Individuals who exceed their terms of service agreements with their Internet service provider or individuals who use their computer at work to download an MP3 file could be subject to intrusive government monitoring. While the need to respond quickly to malicious hacking, such as denial of service attacks, provides a basis for this provision, section 217 should be amended to require court authorization for monitoring of individual users that exceeds forty-eight hours in duration.

Section 218

Prior to the enactment of FISA in 1978, the intelligence community had virtually unchecked authority to conduct domestic surveillance of U.S. citizens and organizations. FISA created a special court to ensure that "the purpose" of domestic intelligence gathering was to obtain foreign intelligence information. The FISA court structure and sole purpose standard attempted to balance the need to collect foreign intelligence information without the constraints of the Fourth Amendment with increased protections for Americans exercising their First Amendment rights. But the sole purpose test has created operational difficulties for foreign intelligence investigations that uncover criminal wrongdoing and lead to an investigation of the criminal conduct. The events of September 11 further blur the line between foreign intelligence investigation and domestic law enforcement and the ability to jointly work the case and share information between the intelligence and law enforcement communities has become more important in the context of the investigations of Al Qaeda. Section 218 loosens the standard of a FISA investigation by requiring a showing that the collection of foreign intelligence information is "a significant purpose" rather than "the purpose" of an investigation. Section 218 is an important tool for counterterrorism but, since probable cause is not required under FISA, it also raises the possibility that U.S. citizens who are not terrorists could have their homes searched and communications monitored without probable cause. Therefore, section 218 deserves special attention when it expires in four years.

 Individual Rights & Responsibilities Section - Human Rights - Winter 2002
By Kate Martin Intelligence, Terrorism, and Civil Liberties
The Patriot Act

 The new anti-terrorism law, the USA Patriot Act (Patriot Act), first expanded the secret surveillance authorities under FISA. Although some changes might have been reasonable to meet recent technological developments, the Patriot Act turned the premise of FISA upside down and eliminated the constitutionally mandated requirement that these extraordinary powers be used only for foreign intelligence purposes, not when the government is seeking to make a criminal case. It then put the director of central intelligence in charge of identifying which Americans to target for these wiretaps and secret searches.

In addition, the Patriot Act requires the Attorney General to turn over to the director of central intelligence all "foreign intelligence information" obtained in any criminal investigation, including grand jury information and wiretap intercepts. The need for law enforcement and intelligence agencies to cooperate and exchange information on terrorism is clear; however, this mandatory sharing is not limited to information related to international terrorism. Instead, the Act requires the DOJ to give the CIA all information relating to any foreigner or to any American’s contacts or activities involving any foreign government or organization, without setting any standards or safeguards for using the information. During congressional consideration of the bill, there was no discussion of the existing authority outlined in detailed memoranda by the DOJ’s Office of Legal Counsel, which already permitted sharing of grand jury information with the intelligence community in carefully defined circumstances where it is clearly needed. Finally, the Patriot Act simply expanded the definition of terrorism, instead of carefully defining those criminal acts of international terrorism, where the CIA could be usefully involved.

ACLU Discussions of Patriot Act  Safe and Free: Safe and Free in Times of Crisis

The Model State Emergency Health Powers Act

Emergency Powers Model Legislation  http://www.aapsonline.org/testimony/emerpind.htm

CDC and Public Health Academicians Propose Mandatory Vaccination and Treatment for "Infectious Diseases"

                                                   December 3, 2001

In the wake of the September 11 terrorism, the U.S. Centers for Disease Control and Prevention (CDC) has proposed unprecedented emergency medical legislation for the states. If enacted, "The Model State Emergency Health Powers Act" would grant governors and public-health authorities broad powers to impose medical treatment on citizens.

The model bill goes much further than national defense and bioterrorism and gives state public-health officials new police powers to control epidemics of "infectious diseases."

"Infectious Diseases" Defined
Under the proposed legislation, the term "infectious disease" is defined as "a disease caused by a living organism." The draft bill states, "An infectious disease may, or may not, be transmissible from person to person, animal to person, or insect to person." [emphasis added]

                    New State Medical Police Powers Proposed
In addition to granting governors and state public-health officials new police powers to protect Americans against bioterrorist attacks, the proposed legislation also would grant them the authority to:

Force individuals suspected of harboring an "infectious disease" to undergo medical examinations;

Track and share individuals' personal health information, including blood and body tissue samples (genetic information) as well as the names and addresses of persons whom the "infectious" person may have contracted the disease from or may have spread it to;

Force persons to be vaccinated, treated, or quarantined for infectious diseases; Mandate all health-care providers to report all cases of persons who harbor any illness or health condition that may be caused by an epidemic or infectious agent and might pose a "substantial risk" to a "significant number" of people or cause long-term disability (note: "substantial risk" and "significant number" are not defined);

Force pharmacists to report any "unusual or increased prescription rates" that may be caused by epidemic diseases;

Declare a "state of public health emergency" and consequently preempt existing state laws, rules, and regulations (including privacy, medical licensing, and property-rights laws, rules, and regulations);

Control public and private property (including pharmaceutical manufacturing plants, nursing homes, other health-care facilities, communication devices, and food). The state would be required to pay "just compensation" to any owner of facilities or materials;

Mobilize all or any part of the "organized militia into service to the State" to help enforce the state orders;

Ration firearms, explosives, combustibles, food, fuel, and alcoholic beverages; and

Impose fines and penalties to enforce the state and public-health authorities' orders.

Authority Without Liability?

While granting these incredibly broad police powers to public-health authorities, the proposed legislation would exempt from liability those carrying out the orders (except if they acted with gross negligence or willful misconduct).

The proposed model legislation was prepared for the CDC by the Center for Law and the Public's Health at Georgetown and Johns Hopkins Universities. The preamble to the October 23 draft legislation notes that: "In the wake of the tragic events of September 11, 2001, our nation has come to the realization that the government's foremost responsibility is to protect the health, safety, and well being of its citizens. New and emerging dangers--including emergent and resurgent infectious diseases and incidents of civilian mass casualties--pose serious and immediate threats to the population. A renewed focus on the prevention, detection, management, and containment of public health emergencies is thus called for.... The exercise of emergency health powers is designed to promote the common good."

The proposed legislation goes on to claim that "The rights of people to liberty, bodily integrity, and privacy must be respected to the fullest extent possible consistent with the overriding importance of the public's health and security.... This Act is necessary to protect the health and safety of the citizens of this State."

What Can Concerned Citizens Do?

Alert citizens who are concerned about the proposed legislation should contact their state officials  (governors, representatives, and senators), attorneys general, and local officials (city or town and county officials). The addresses for these officials are available at local public libraries or on the Internet.

They should also contact U.S. Health and Human Services Secretary Tommy Thompson (see contact information below).

Additional Groups Working on "The Model State Emergency Health Powers Act"

The CDC and public-health academicians are working with the following organizations to get "The Model State Emergency Health Powers Act" passed in states across the country:
                          National Governors Association,
                          National Conference of State Legislatures,
                          Nat. Assoc. of State and Territorial Health Officials,
                          Nat. Assoc. of City and County Health Officers, and
                          National Association of Attorneys General.

Concerned citizens might also want to voice their concerns with officials from these groups representing their city/town, county and state. Contact information is provided in below. Finally, you can view "The Model State Emergency Health Powers Act" in its entirety at the following Web site:                     www.publichealthlaw.net.
 
 

** Model Emergency Health Powers Act (MEHPA)  http://www.attackonamerica.net/mehpa.htm

The Model State Emergency Health Powers Act http://spot.pcc.edu/~rwolf/Model_State_Health.pdf
 (access the producers of the Act)
 The Center for Law and the Public Health  Welcome to the Center for Law and the Public's Health )   http://www.publichealthlaw.net/
NY State Emergency Health Powers Act Information http://goodlight.net/nyvic/law/emergency/emrgncinfo.htm
         IHF: Revised Model State Emergency Health Powers Act: Big Government Gets Bigger
            http://forhealthfreedom.org/Publications/Informed/RevisedModelState.html