NC State University - March 2002 - David Drooz

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USA PATRIOT Federal anti- terrorism law

Effective October 26, 2001

December 31, 2005, sunset for some of the surveillance provisions

Additional laws and regs will be enacted

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USA PATRIOT Major areas for higher education

1. Biological agents and toxins 2. Reporting info on foreign students 3. FERPA change 4. Surveillance / release of records

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1. Biological Weapons statute PATRIOT amendment makes it

unlawful to

“knowingly possess any biological agent, toxin, or delivery system of a type or in a quantity that…is not reasonably justified by a…bona fide research or other peaceful purpose.”

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1. Biological Weapons statute Intent to use as weapon is no longer

required

Up to 10 years in prison

Does not apply to agent or toxin in naturally occurring environment (i.e., it’s not been cultivated or extracted)

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1. Biological Weapons statute “Biological agent" = any micro-organism,

virus, infectious substance, or biological product…capable of causing-- (A) death, disease, or other biological

malfunction in…another living organism; (B) deterioration of food, water,

equipment, supplies, or material of any kind; or

(C) deleterious alteration of the environment

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1. Biological Weapons statute Another PATRIOT amendment:

Some biological agents are “select agents”

“Restricted persons” cannot transport, ship, possess, or receive select agents

Up to 10 years in prison for violation

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1. Biological Weapons statute

“Restricted persons” =

Indicted or convicted of crime that’s punishable by over 1 year in prison

Fugitive from justice Unlawful user of controlled substance Illegal alien

Continued…

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1. Biological Weapons statute

“Restricted persons” = Has been committed to mental institution

or adjudicated as “mental defective” Is from a country designated as a

terrorist state (Iran, Iraq, Syria, Libya, North Korea, Cuba, Sudan) and is not a permanent resident of USA

Has dishonorable discharge from military

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1. Biological Weapons statute

Punishment is for violations by the restricted person, not the institution

NCSU: warn persons with access to select agents about the restricted categories

NCSU: plans for criminal background checks. No plans for checking other types of restricted categories

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1. NC law on biological agents New NC statute and regulations

supplement PATRIOT Creates a “biological agents

registry” Must report changes in select agent

info to HHS within 7 days Not a public record Must comply with federal regulatory

safeguards

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1. Biological Weapons statute Environmental Health and Safety

office coordinates compliance for NCSU on the biological agents requirements

David Rainer 515-4238

Human Resources is setting up criminal checks (Terree Kuiper 515-4288)

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2. Foreign student reporting requirements Old law required US Attorney General to

set up an electronic system for collecting info on non-immigrant foreigners with F, M, and J visas.

PATRIOT provides funding to get this going.

Once the software is running (by Jan 2003), universities will have to report info.

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2. Foreign student reporting requirements Report:

Identity and current address Visa classification and dates of

issuance/extension Current academic status (full or part time;

compliance with terms of exchange program, etc.)

University discipline action, or change in participation in an exchange program, as a result of criminal conviction

Date of entry and port of entry

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2. Foreign student reporting requirements

Office of International Scholars and Students (Michael Bustle) will handle the reporting for NC State

OISSS also handles other reporting on foreign students, as required by INS regulations

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3. PATRIOT & student records

Amends FERPA - law on student privacy

US Attorney General may get ex parte court order to collect education records for terrorism investigation

University not required to record the disclosure

University has good faith immunity

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4. Surveillance / release of records Expands law enforcement surveillance

rights through amendments to:

Wiretap / stored communications laws Pen register / trap and trace laws Foreign Intelligence Surveillance Act Federal Rules of Criminal Procedure

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4. Surveillance / release of records Tools for surveillance: Wiretap – interception of oral, wire,

or electronic communications Pen registers / Trap and trace –

devices that record phone numbers dialed out or dialed into a line

Internet/computer gathering devices E.g., Carnivore and Magic Lantern

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4. Surveillance / release of records

Objects of surveillance:

Stored communications Communications in transit Computer files User data (subscriber records)

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4. Surveillance / release of records Source of authority for surveillance

request:

Public records request – anyone Subpoena - court, attorney, or authorized

official Search warrant – court (or AG for FISA) Pen/trap order - court Wiretap order – court (or AG for FISA)

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4. Surveillance / release of records Each type of surveillance or records

request must satisfy different statutory criteria

Low threshold for approval of surveillance of “foreign intelligence activities.” Approval comes from a special federal court that operates secretly (or just from Attorney General if target is a foreign power)

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4. Surveillance / release of records Summary of PATRIOT changes to surveillance

1. Hacking: ISPs can now request law enforcement help when intercepting communications of a computer trespasser. No court order needed.

2. Hacking, etc.: Wiretap orders can now be issued to cover violations of Computer Fraud and Abuse Act, Chemical Weapons law, and Anti-terrorism law

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4. Surveillance / release of records

3. Voicemail – can now be seized with search warrant (like email) instead of wiretap order.

4. Subscriber information – ISPs must divulge info about users in response to administrative subpoena

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4. Surveillance / release of records 5. Emergencies – ISPs serving the public may

disclose content and non-content records of electronic communications to law enforcement to respond to threat of immediate danger of death or serious injury. Also to protect the rights and property of

the ISP

6. Nationwide service - search warrants for stored electronic communications now have effect nationally (doesn’t have to be from local court). (For email <180 days old.)

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4. Surveillance / release of records 7. Pen register / trap and trace devices

Now for electronic communications as well as phones. Connection records only – not content!

Court order is valid nationwide; need not name the ISP. ISP can demand that law enforcement certify the order applies to the ISP.

This is a big deal. E.g., supports Carnivore.

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4. Surveillance / release of records 8. FISA controls surveillance of foreign

intelligence

Foreign intelligence = info related to sabotage, espionage, terrorism or other hostile acts by agent of foreign power

Lesser requirements for law enforcement to meet than for regular wiretaps, pen/traps, and searches

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4. Surveillance / release of records 8. FISA continued…

FISA now says that “foreign intelligence” must be a “significant purpose” instead of “the purpose” of surveillance or search

Allows roving (nationwide) wiretaps – a provider can be required to assist even though not named in the order or subpoena

Good faith immunity for providers who assist with a court order or request under FISA

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4. Surveillance / release of records 8. FISA continued…

FBI can get court order for production of business records To investigate international terrorism or

clandestine intelligence Now applies to all businesses, even

universities The order and disclosure must be kept secret

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4. Surveillance / release of records 9. Search warrants –

May be issued from anywhere terrorism has occurred, no longer has to issue in district where search is to occur

Court may allow a “reasonable time” before police must tell target that search has occurred

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4. Surveillance / release of records 10. PATRIOT does not impose any new

technology requirements on providers

Reasonable compensation is available to a provider who furnishes law enforcement with facilities or technical assistance in connection with a pen/trap order

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Conclusion

Biological agents Keep track of “biological agents” & limit quantities Keep track of who has access to select agents Call Environmental Health & Safety for info

Surveillance Ask that all requests for surveillance or records be

in writing Consult immediately with the Office of Legal

Affairs