What should I know about the new Anti-Terrorism
Laws?
On October 26, 2001, the President
signed the Uniting and Strengthening America Act Providing
Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA-PATRIOT) Act of 2001 (HR 3162). The
act’s provisions expand the disclosure of taxpayer
information, expand Treasury investigative authority
to target foreign money laundering practices, and
provide for the designation of the proper agency(s)
to process information and perform audits under the
Bank Secrecy Act. The provisions are, for the most
part, effective as of the date of enactment, October
26, 2001.
The new legislation makes it easier
for the government to access your computer. Law enforcement
can go to a judge and easily get permission to look
at the parts of your e-mail that show the recipients
and senders of your e-mail. Investigators also would
be able to examine which Internet sites you have visited.
Currently, investigators often need
to get a wiretap order to obtain this information.
That requires convincing a judge that there is "probable
cause" to believe that a crime is involved. Under
the new law, they would only have to tell a judge
that this information is "relevant" to an
ongoing criminal investigation.
The bill still prohibits looking
at the content of e-mail or Internet sites without
a wiretap order. The new rules are believed necessary
to keep pace with new and growing technology. They
note that the Sept. 11 hijackers made extensive use
of e-mail.
The legislation also makes it possible
for law enforcement to use available technology to
monitor all internet activity that comes through your
service provider.
Law enforcement can now get broader
wiretaps and warrants without ever having to make
the warrants public record. The legislation would
widen the government's ability to operate in secret
against potential terrorists.
The previous federal wiretap warrants,
called “FISAs,” for Foreign Intelligence
Surveillance Act, were issued in secret by specially
designated federal judges. Their contents are never
revealed. The new Anti Terrorist Act expands FISA's
primary purpose to include hunting terrorists. The
FISA statute now can be used to "protect against
international terrorism or clandestine activities"
as well as to gather "foreign intelligence information."
The new law increases the number
of special judges from seven to eleven in number.
It also enables "traveling" wiretaps, that
is, wiretaps that follow the target no matter what
telephone number he or she uses. Usually wiretaps
apply to phone numbers and not to the individuals
who use the phone.
Anti-terrorist experts suggest that
wiretaps and searches are the best way to monitor
close-knit terrorist groups, which operate in separate
“cells” to limit the chance that several
“cells” can be “rolled up”
if one is compromised. The new provisions, except
for the number of judges, expire after 4 years, unless
they are extended or replaced.
The new laws give the Attorney General
new and unprecedented power to hold foreigners that
he says are terrorism suspects for 7 days before filing
criminal or immigration charges. The attorney general’s
office determines who is a terrorism suspect.
Detaining a suspect could prevent
expected terror attacks, by incarcerating those that
carry out the attack. Additional time is then available
to determine the identity of a suspected terrorist
if false identification papers are used.
The legislation has five other key
provisions:
Authorized searches without informing the property
owner could be conducted. Before the bill, authorities
usually were required to present their warrant to
the owner before beginning a search.
Foreign intelligence gathering from
domestic criminal investigations aimed at terrorists
would be easier . FBI and other federal organizations
can share information from grand juries and from ordinary
criminal wiretaps. This should speed up prosecutions
and insure that future terrorist attacks would be
caught by law enforcement.
Non-resident aliens from "countries
that support terrorism" could not possess a "biological
agent or toxin," such as anthrax. Scientific
researchers, could only have small quantities, and
only if they were for "peaceful purposes."
Banking secrecy regulations would
be changed to make it harder for foreign account holders
to conceal their identity from American regulators.
Depositors in foreign banks that exist only on paper
could not open parallel accounts in a U.S. bank. These
provisions are designed to stop funds between terrorists
and their sponsors.
Agents assigned to the Canadian border
with the Customs Service, Border Patrol and Immigration
and Naturalization Service Inspection program would
be increased three-fold.
Only time will tell whether the impact of the new
legislation will reach many of us in our daily lives.
The proponents of the legislation hope that greater
freedoms will be protected by giving up small ones.
Michael R. Barnes
practices law in Key West, Florida. His comments are
provided as a pro bono community service and are not
offered as legal advice for a particular set of circumstances.
The law is continually changing. If you are concerned
that you may need a lawyer, you are encouraged to
contact one about your legal rights and responsibilities
and follow his or her advice for your individual situation.
