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The Patriot Act - Robert Don Gifford

2013 Presentation on the Patriot Act by Robert Don Gifford, an Assistant U.S. Attorney, Army Reserve JAG, and Adjunct Law Professor at the University of Oklahoma College of Law, Oklahoma City University School of Law, and the University of Arkansas School of Law

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The Patriot Act - Robert Don Gifford

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  1. USA Freedom Act (PATRIOT ACT 2.0) Robert Don Gifford Assistant U.S. Attorney Colonel, JAG Corps, U.S. Army Reserves Adjunct Law Professor (OU/OCU/Arkansas) Robert.D.Gifford@usdoj.gov *Non-Attribution and not necessarily the views of DOJ/DOD/OU/OCU/U of A/etal., etc.

  2. PATRIOT ACT (you guys remember me?)

  3. Cool Acronym Circa 2001 • Actually it’s a 10-letter “backronym” • “United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” *Someone actually got paid to think of it *An idea as good as “Friends University of Central Kansas”

  4. Goal: A Cocktail Napkin’s worth of Info Just enough information to make us sound smart at a cocktail party (“You’re a lawyer, explain [fill in the blank on any area of law] to me…”).

  5. PATRIOT Act Timeline of Key Recent Federal Actions on the PATRIOT Act 2011 2013 2014 May 2015 June 2015 • PATRIOT Sunsets Extension Act of 2011 • The act was renewed for four years until July 1, 2015, preventing the expiring of three key provisions: roving wiretaps, lone wolf surveillance for terrorism suspects, and the ability to access a wide array of personal records of terrorism suspects (often called the ‘library provision’.) • H. Amdt. 413 to Department of Defense Appropriations Act, 2014 • An amendment proposed by Michigan Reps. Justin Amash (R) and John Conyers (D) in the aftermath of the Edward Snowden NSA leaks, the amendment would have restricted governmental authority to mass collect metadata on Americans; it failed in the House on a vote of 217-205. • USA FREEDOM Act of 2014 • A bill proposed by Sen. Patrick Leahy which would require the NSA to request specific data from phone companies and limited the amount and distance of connections the NSA could gain from a court. The bill would also have appointed public advocates for privacy rights and civil liberties in federal surveillance courts. The bill failed to achieve cloture in the Senate by a vote of 58-42. • USA Freedom Act of 2015; Temporary Extension (S.1357) • The USA FREEDOM Act of 2015 includes a provision that requires the gov’t to identify a specific person or account from a provider rather than allowing for mass collection of data; the measure passed the House but failed a Senate cloture vote. Sen. Maj. Leader Mitch McConnell (R-KY) introduced a temporary two-month extension (S.1357) for the PATRIOT Act’s expiring provisions, but the vote also failed to achieve cloture. Congress Allows Key Provisions of PATRIOT Act to Expire With the help of Sen. Rand Paul’s (R-KY) parliamentary maneuvers, three key provisions of the PATRIOT act expired on July 1, 2015. On June 2, the Senate passed the USA Freedom Act, which ended government collection of telephone metadata and instead mandated phone companies to store the records.

  6. Let’s go back in time(Flux Capacitor not necessary) • Enacted 45 days after 9/11 • Bill was 342 pages long (No one really read it….) • Act had 10 titles to address Terrorism Investigation Funding; Immigration Requirements; Enhancement of Federal Authorities; Assistance to Terrorism Victims; Sharing of Info b/w LE; Bioterrorism Prevention, and Surveillance

  7. What else did it do? • Increased penalties for terrorism crimes • Able to get SWs in one place for multiple jurisdictions (no delay).\ • Helped get library records easier • e.g. The Zodiac. LE suspected the Zodiac was inspired by a Scottish occult poet, and wanted to learn who had checked the poet's books out of the library.

  8. What was Newsworthy Back Then • Roving Wiretaps • Sneak-and-Peek Warrants (broadened – enter/no warrant) • Carnivore Applications • Lowered standards for gaining surveillance authority • Foreign Student Monitoring (FERPA Exceptions) • Bioterrorism Provisions (a new “felon in possession” – toxins – e.g. anthrax) • Enhances ability to track suspects on internet • Allows ISPs to disclose content in emergencies

  9. Back to the Future(sort of - June 1, 2015) • Parts of the Patriot Act expired on June 1, 2015. With the passage of the USA Freedom Act on June 2, 2015, the expired parts were restored and renewed through 2019. However, Section 215 of the law was amended to stop the National Security Agency from continuing its mass phone data collection program. Instead, phone companies will retain the data and the NSA can obtain information about targeted individuals with permission from a federal court.

  10. Wait, what, huh? They did what? • This was big stuff. • Heavily debated (Sen. Rand Paul [R – KY] filibustered for on the floor for nearly 10 hours to stop the outright renewal of the existing PATRIOT Act). • Mitch McConnell wanted to leave things in place. • Few in the media seriously covered. • Why was there so little news coverage???

  11. For you conspiracy theorists

  12. Back to yet another acronym (and another backronym) for the USA FREEDOM ACT • United and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act. • Said to be the most important surveillance reform bill since 1978 (when FISA was enacted) *I want that job to be the one who comes up with acronyms for Congress….

  13. The Big Change with the New Act

  14. Who was Snowden • He’s not the WikiLeaks dude (Julian Assange) • June 5, 2013, front page news of WaPo and the UK’s The Guardian (with follow ups by the NYT and Der Spiegel). • Snowden disclosed the NSA ordered telephone companies to turn over domestic telephone calling records en masse. • Gov’t database going back years of our phone calls – a time machine of our past communications for future scrutiny.

  15. Under the PATRIOT Act

  16. Section 215 is History(Thanks to Snowden?) • Bulk collection of phone calls by NSA was reformed (3 Hop System – friend of a friend’s contact list….). • Will still be allowed by the FISA Court • Phone companies will collect the data – not NSA. • Now just a “2 hop system” • Question: What happens to all of that historical information NSA has already collected (9th Circuit said in May2015 that was not cool).

  17. Some Other Changes…. • FISA Court declassifying some rulings – no longer sealed (or “secret”) – explaining rulings and rationales. • Private Companies (i.e. Google, Twitter, and Facebook) were previously not allowed to disclose to private individuals that the Government demanded their individual.

  18. Is it good to make companies a partner of the Government?

  19. Some PATRIOT stuff was renewed • “Lone Wolf” provision allows (designating someone as a terrorist even if no solid connections to a specific group). • “Roving Wiretaps” are still allowed (but still needs a warrant – albeit a “secret warrant” under the FISA Court. • FISA Court (“Foreign Intelligence Service Act”) came around after the abuses of the Nixon Whitehouse. • During the 1990s, Ford nominee Judge Ralph Thompson (WDOK) served as a judge on the FISA Court (appointed by Justice Rehnquist in 1990). • Continued use of “National Security Letters” – an “administrative subpoena” - The Stored Communications Act, Fair Credit Reporting Act, and Right to Financial Privacy Act authorize the government to seek information that is "relevant" to authorized national security investigations. By law, NSLs can request only non-content information, for example, transactional records and phone numbers dialed, but never the content of telephone calls or e-mails.

  20. Off topic – sort of…. • San Bernardino Apple vs. FBI • Government got a court order under the All Writs Act to compel Apple to create a program to get into a terrorist’s iPhone without compromising the data. • What’s the harm? A federal magistrate judge said it was okay.

  21. The Phone • The phone in question is an iPhone 5c running the iOS9 version of Apple’s software. The phone is owned by the San Bernardino Department of Public Health, which gave it to Syed RizwanFarook, the shooter suspect, to use for work.

  22. San Bernardino Attack • On December 2, 2015, 14 people were killed and 22 were seriously injured in a terrorist attack in San Bernardino, CA, which consisted of a mass shooting and an attempted bombing. The perpetrators, Syed RizwanFarook and Tashfeen Malik, a married couple targeted a County Department of Public Health training event of about 80 employees. After the shooting, the couple fled in a rented sport utility vehicle (SUV). Four hours later, police pursued their vehicle and killed them in a shootout.

  23. How the FBI got to court On February 9, 2016, the FBI announced that it was unable to unlock one of the mobile phones they recovered due to its advanced security features. As a result, the FBI asked Apple Inc. to create a new version of the phone's iOS operating system that could be installed and run in the phone's random access memory to disable certain security features. Apple declined due to its policy to never undermine the security features of its products. The FBI responded by successfully applying to a federal judge to issue a court order, mandating Apple to create and provide the requested software. The order was not a subpoena, but rather was issued under the All Writs Act of 1789.

  24. The All Writs Act • The All Writs Act is a United States federal statute, codified at 28 U.S.C. § 1651, which authorizes the United States federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

  25. Not the first rodeo for a phone The U.S. Supreme Court ruled in United States v. New York Telephone Co. 434 U.S. 159 (1977) that the act provided authority for a U.S. District Court to order a telephone company to assist law enforcement officials in installing a device on a rotary phone in order to track the phone numbers dialed on that phone, which was reasonably believed to be used in furtherance of criminal activity.

  26. Calif. vs. Brooklyn Apple argued Congress established guidelines for what is required of private entities in such circumstances in the Communications Assistance for Law Enforcement Act of 1992 (CALEA). DOJ argued that CALEA does not apply which involve "data at rest rather than in transit", an important distinction for determining whether CALEA applies, nor does it alter the authority granted the courts under the All Writs Act. On February 29, 2016, a Magistrate Judge in Brooklyn, NY denied the government's request in its effort to decrypt an iPhone for admission as evidence.

  27. Shaping the Battlefield: Encryption is the underlying battle and goal • The Office of the Director of National Intelligence pointed out after the Paris attacks that the legislative environment was ripe for a change in the law to compel companies to be forced to create decryption and backdoors in their otherwise secure products.

  28. Questions, Comments, Criticisms? Robert Don Gifford Assistant U.S. Attorney Adjunct Law Professor (OU/OCU/Arkansas) Colonel, Judge Advocate, U.S. Army Reserves Robert.D.Gifford@usdoj.gov/Robert.D.Gifford4.mil@mail.mil 405.553.8736 desk/direct

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