Wednesday, April 19, 2006

The USA Patriot and Homeland Security Acts

The relationships the FBI is developing with businesses through InfraGard and the data mining capabilities inherent in a program like "Digital Storm" have taken on a particular significance in the wake of the 9/11 terrorist attacks.

In an action that mirrors its reaction to the turbulence of the 1960s, Congress recently adopted sweeping changes to the rules governing government wiretaps. The changes were included in the "Uniting and Strengthening America By Providing Appropriate Tools Required To Intercept and Obstruct Terrorism" Act, better known as the USA Patriot Act. Among its various provisions are a number of significant changes to how surveillance is conducted in this country:
  • Government Agents and the Foreign Intelligence Sueveillance Act. The Act permits government agents to use the Foreign Intelligence Surveillance Act (FISA) to intercept communications and engage in surveillance even if the primary purpose of the surveillance is a criminal investigation. The benefit to law enforcement is that the standards for obtaining authority to do surveillance under FISA are far less onerous than those applied to surveillance of U.S. citizens suspected of committing a crime.
  • Law Enforcement and Access to Websites. Although the parameters for doing so are still unclear, the Patriot Act apparently authorizes law enforcement to obtain access to a list of websites visited by an individual under investigation, as long as law enforcement agents can obtain a U.S. District Court order.

Most disturbingly for employees, the Patriot Act also gives the Federal Bureau of Investigation a virtually unfettered right to demand any records maintained by a business about an employee under investigation. Specifically, the law states:

The Director of the Federal Bureau of Investigation or a designee ... may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities....

If a federal judge or magistrate approves the government's application, an order is entered without any advance notice to the business or employee, and the business is forbidden from telling anyone that the FBI has even made a request for an employee's records. Not surprisingly, it's unclear how extensively this provision has been used over the past year, but it's clear that from both a legal and practical point of view, the FBI's ability to compile data about employees is steadily expanding.

Following the election in November 2002, the recapture of the Senate by the Republican Party helped spur passage of the Homeland Security Act on terms more acceptable to President George W. Bush. Among the more controversial provisions of the Act is the creation of a project called "Total Information Awareness" (TIA). The goal of TIA is to build a massive governmental database containing, among other things, every commercial, consumer, and financial transaction, every academic grade, and the title of every book or video rented or purchased in this country. It's unclear just yet how much information will be drawn from employers, but the potential scope of TIA is not encouraging.

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