The Catholic University of America

Summary of Federal Laws

Miscellaneous

The U.S.A. PATRIOT Act: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. (HR3162) (Public Law 107-56; 115 Stat. 272.) 31 USC 5311 et seq.

The U.S.A.Patriot Act is a broad reaching law that amends many areas of U.S. law, with a specific focus on enhancing the ability of law enforcement to combat terrorism. A number of different areas of higher education law were affected by passage of the PATRIOT Act. What follows is a quick summary of the various higher education laws (or areas of operation) that were affected by this law. 

FERPA: The amendment to FERPA permits educational agencies and institutions to disclose -without the consent or knowledge of the student- personally identifiable information from the student's education records to the Attorney General of the United States or his designee, but only in response to an ex parte order in connection with the investigation or prosecution of terrorism crimes specified in sections 2332b(g)(5)(B) and 2331 of title 18, U.S.Code. An ex parte order is an order issued by a court without notice to an adverse party.

In order to obtain the order, the Attorney General must certify that there are specific and articulable facts giving reason to believe that the education records are likely to contain relevant information. The new law gives schools immunity when the institution releases information in good faith under this provision. Records obtained under this provision are not subject to the FERPA requirement that records be kept of each request for access to and each disclosure of personally identifiable information from the education records of each student. [1]

Although the Family Policy Compliance Office has stated the health and safety emergency provision can be used in national emergencies such as the September 11th attacks, release of records under that provision are limited to situations where there is imminent danger and an immediate need for the release of records. Now that this legislation has been adopted, schools met with requests for student record information in connection with the terrorist attacks should expect to be served with a court order.

The text of the amendment is as follows:

SEC. 507. DISCLOSURE OF EDUCATIONAL RECORDS. [115 Stat. 367-68]

Section 444 of the General Education Provisions Act (20 U.S.C. 1232g), is amended by adding after subsection (i) a new subsection (j) to read as follows:

``(j) Investigation and Prosecution of Terrorism.-

``(1) In general.--Notwithstanding subsections (a) through (i) or any provision of State law, the Attorney General (or any Federal officer or employee, in a position not lower than an Assistant Attorney General, designated by the Attorney General) may submit a written application to a court of competent jurisdiction for an ex parte order requiring an educational agency or institution to permit the Attorney General (or his designee) to-

``(A) collect education records in the possession of the educational agency or institution that are relevant to an authorized investigation or prosecution of an offense listed in section 2332b(g)(5)(B) of title 18 United States Code, or an act of domestic or international terrorism as defined in section 2331 of that title; and
"(B) for official purposes related to the investigation or prosecution of an offense described in paragraph (1)(A), retain, disseminate, and use (including as evidence at trial or in other administrative or judicial proceedings) such records, consistent with such guidelines as the Attorney General, after consultation with the Secretary, shall issue to protect confidentiality.

``(2) Application and approval.-

``(A) In general.--An application under paragraph (1) shall certify that there are specific and articulable facts giving reason to believe that the education records are likely to contain information described in paragraph (1)(A).

``(B) The court shall issue an order described in paragraph (1) if the court finds that the application for the order includes the certification described in subparagraph (A).

``(3) Protection of educational agency or institution.-An educational agency or institution that, in good faith, produces education records in accordance with an order issued under this subsection shall not be liable to any person for that production.

``(4) Record-keeping.--Subsection (b)(4) does not apply to education records subject to a court order under this subsection.''.

Immigration Law 

The effect of the changes to foreign student monitoring are not so much a change in the law (although a few changes have been made) but rather a mandate to implement earlier legislation by Jan. 1, 2003. A 1996 law, the Illegal Immigration Reform and Immigrant Responsibility Act required implementation of an electronic record keeping system for data on foreign students. The PATRIOT ACT appropriated $36,800,000 to the Department of Justice to fully implement by January 1, 2003 the foreign student visa monitoring program (which is now known as SEVIS). 

Expansion of Biological Weapons Statute 

Section 817 of the PATRIOT ACT makes it a crime punishable by fine or up to 10 years in prison to knowingly possess a biological agent, toxin, or delivery system of a type or in a quantity not "reasonably justified" by research or other peaceful purposes. The law also prohibits possession of "select agents" (biological agents or toxins as defined in 42 CFR Part 72 Appendix A) by an alien (other than an alien lawfully admitted for permanent residence) who is a national of a country as to which the Secretary of State has determined[2] is a country supporting terrorism This list currently includes Cuba*, Iran, Iraq, Libya, North Korea, Sudan and Syria. (15 CFR 742.8-10, 742.19, 746.2-7) 

Note the related law entitled Public Health Security and Bioterrorism Preparedness and Response Act of 2002.

Cuba Sanctions Update: Removal of Cuba from Terrorism List Will Result in Modest Easing of Trade Sanctions (April 10, 2015)

 

President Obama Announces Significant Easing of Sanctions and Export Controls Applicable to Cuba (Hogan Lovells, Dec. 17th, 2014) Not yet fully implemented, but coming soon. Article is a good summary of changes in the works.

Electronic Communications Privacy Act Amendments

The changes made by the PATRIOT Act to ECPA address two situations, one, the manner in which government authorities can compel disclosure, and two, whether or not an organization can make a voluntary disclosure to government authorities. A chart detailing what type of legal process and standard must be met for various disclosures compelled by the government (e.g. a search warrant instead of a court order) is online at the American Library Association web site. See the ALA USA Patriot Act web page for updated provisions.  

Section 212 of the USA-Patriot Act amends ECPA by adding a new voluntary disclosure exception for emergency situations. Under this exception, if a provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of certain information without delay, the provider may disclose that information (content or non content records) to a law enforcement agency. Also, and this was not clear under the law before, under the USA PATRIOT Act an Internet Service Provider may authorize federal law enforcement to investigate computer trespass by someone outside the system, e.g. a person that does not have an existing relationship with the owner or operator of the system. (Section 202 amends 18 U.S.C. § 2516(1)(c) to add the Computer Fraud and Abuse Act offenses (18 U.S.C. § 1030)). 

In light of the changes made by the law, it is advisable for colleges and universities to review their procedures and protocols regarding release of information. 

Selected Case Law

ACLU v. Clapper (ACLU web page summary of case)

Decision in challenge to mass call tracking

Doe v. Mukasey (continuation of Doe v. Gonzales) (C.A. 2nd Cir. Dec. 15, 2008)

Gag order found unconstitutional.  From the case at page 44: 


To recapitulate our conclusions, we (1) construe subsection 2709(c) to permit a nondisclosure requirement only when senior FBI officials certify that disclosure may result in an enumerated harm that is related to “an authorized investigation to protect against  
international terrorism or clandestine intelligence activities,” (2) construe subsections 3511(b)(2) and (b)(3) to place on the Government the burden to show that a good reason exists to expect that disclosure of receipt of an NSL will risk an enumerated harm, (3) construe subsections 3511(b)(2) and (b)(3) to mean that the Government satisfies its burden when it makes an adequate demonstration as to why
disclosure in a particular case may result in an enumerated harm, (4)rule that subsections 2709(c) and 3511(b) are unconstitutional to the extent that they impose a nondisclosure requirement without placing on the Government the burden of initiating judicial review of that requirement, and (5) rule that subsections 3511(b)(2) and (b)(3) are
unconstitutional to the extent that, upon such review, a governmental official’s certification that disclosure may endanger the national security of the United States or interfere with diplomatic relations is treated as conclusive.
 

Doe. v. Gonzales, 126 S. Ct. 1, Oct. 7, 2005
In ruling on this emergency application to vacate the stay granted in the case below by the United States Court of Appeals for the 2nd Circuit, Justice Ginsburg declined to vacate the stay, noting the expedited briefing schedule the Second Circuit had imposed in the case.

Doe v. Gonzales, 05-CV-1256
In this ruling issued Sept. 9, 2005 on the plaintiffs' motion for a preliminary injunction, the judge held that the gag order associated with the National Security Letter received by an anonymous American Library Association member violated the First Amendment. The plaintiffs challenged the consitutionality of 18 USC § 2709, which requires any wire or electronic communication service provider to comply with the requests of the FBI for information (specifically name, address and length of service of subscriber). Plaintiffs claim that 2709 violates the First Amendment by prohibiting the recipient of the letter from disclosing that the FBI seeks information, and by authorizing the disclosure of information without tailoring the demand to a demonstrable compelling need. The plaintiffs also challenged the constitutionality of the lack of a mechanism by which the recipient can challenge the NSL's validity, and the lack of prior notice to the person whose information was being disclosed.

Specifically, the court held that the plaintiffs had established irreparable injury as a result of the enforcement of
§ 2709 with regard to Doe's identity. The inability to speak out on the subject as an NSL recipient was a real and present loss of a First Amendement right, and was both a prior restraint on speech, and a content based ban, and as such, is subject to strict scrutiny. In relevant part, the court noted as follows:

The government argues that it has an interest in preventing the disclosure of Doe's identity because disclosure of the NSL recipient's identity may, inter alia, permit the subject of the NSL, or those involved in the subject matter of the NSL, to deduce that the government is aware of their/his/her identity, leading them to flee or go deeper under cover. Defs.' Mem. Opp'n. at 2-3; see also Szady Decl. ¶¶ 29-30. Even affording the government deference in its judgment about national security concerns, the court cannot conclude on the record in this case that, in these circumstances, the government has a compelling interest in barring the disclosure of Doe's identity. Nothing specific about this *77 investigation has been put before the court that supports the conclusion that revealing Does' identity will harm it. The record supplied by the defendants suggests that the disclosure of Doe's identity "may" or "could" harm investigations related to national security generally. See Szady Decl. at ¶¶ 20-29. Just such a speculative record has been rejected in the past by the Supreme Court in the context of a claim of national security. See New York Times Co., 403 U.S. at 725-26, 91 S.Ct. 2140 (Brennan, J. concurring) ("[T]he First Amendment tolerates absolutely no prior judicial restraints of the press premised upon surmise or conjecture that untoward consequences may result.").
Further, the information that is before the court suggests strongly that revealing Doe's identity will not harm the investigation.

*******

Second, § 2709(c) creates a unique situation in which the only people who possess non-speculative facts about the reach of broad, federal investigatory authority are barred from discussing their experience with the public. This ban is particularly noteworthy given the fact that advocates of the legislation have consistently relied on the public's faith in the government to apply the statute narrowly in order to advocate for passage and reauthorization of various provisions of the Patriot Act. See, e.g., "Attorney General John Ashcroft, Protecting Life and Liberty" (Address in Memphis, Tennessee, Sept. 18, 2003), http://www.usdoj.gov/archive/ag/speeches/2003/091803memphisrem arks.htm (accusing those who fear executive abuse of the increased access to library records under the PATRIOT Act of "hysteria" and stating that "the Department of Justice has neither the staffing, *82 the time nor the inclination to monitor the reading habits of Americans. No offense to the American Library Association, but we just don't care.") The potential for abuse is written into the statute: the very people who might have information regarding investigative abuses and overreaching are preemptively prevented from sharing that information with the public and with the legislators who empower the executive branch with the tools used to investigate matters of national security.

While the court concluded that the government, in the face of plaintiffs as applied challenge, had not demonstrated a compelling interest in preventing disclosure of the recipient's identity, the court did grant defendant's request for a stay.

 

 

Resources

ALA Patriot Act Page (current)

Wikipedia Patriot Act page

 

 

 

updated 7-21-18