1. Networking 2002 USA-Patriot Act Tracy Mitrano Cornell University
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2. Policy Implications for Higher Education
The USA-Patriot Act
Policy Implications for Higher Education

3. USA-Patriot Act: Basics
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Acts
Signed into law on October 26, 2001
One of the longest pieces of emergency legislation passed in one of the shortest periods of time in American history
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4. USA-Patriot Act: Basics
Ten Sections covering a variety of areas, including banking, money laundering, surveillance, border protection, victims’ support, information sharing within the infrastructure and the strengthening of criminal laws against terrorism.
Severability clause
To protect against the whole the potential constitutional violation of a single section
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5. Issues for Higher Education: (Not Including Bio-terrorism)
Family Education Records Privacy Act
New “emergency” exception
For terrorism specifically
No notice to student
Foreign Intelligence Surveillance Act
“Hostile foreign power”
No traditional constitutional protection
Business records
Disclosure illegal
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6. Copyright Tracy Mitrano 2002
IT Systems
Two most common questions:
Does Patriot Act require re-architecting of system?
No, but can with specific authorization for pen registers and trap and trace
Compensation offered
Does Patriot Act require retention of logs?
Not as a rule, but up to 180 days with authorization
Copyright Tracy Mitrano 2002

7. ECPA: To Whom Does It Apply?
Statutory Language:
“…providers of Internet service to the public”
Does it apply to colleges and universities?
No case law on point
Anderson Consulting: EPCA does not apply
Digital Millennium Copyright Act as potential “safe harbor” model of distinction between students and staff/faculty?
Areas where there is service to the public, i.e. list serves?
General Rule
Act as if it does, but hold question as potential defense
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8. Issues for Higher Education
Electronic Communications Privacy Act
New “emergency” disclosure
“Danger to life and limb
New “required disclosure”
“Rubber-stamping subpoenas”
Below “probable cause”
“Routing:” Pen registers and trap and trace devices
Content is the constitutional question
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9. Issues for Higher Education
Electronic Communications Privacy Act
Computer Trespass
Owner/Operator consent for federal intervention
So long as owner/operator reasonably believes investigation is relevant to computer trespass
Investigation of it and no other
No authorization required
No limits set, e.g. stop
No restraint on return with authorization based on information gathered during the invited investigation
No guarantee it is constitutional
Sunset provision
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10. Copyright Tracy Mitrano 2002
Policy Implications
Electronic Communications Privacy Act
Routing procedures for request of legal papers
Procedures for “emergency” disclosure
Police
IT officials, potential damage control
Procedures for computer trespass
Disallow random requests
Identify offices to be notified
Identify officers to be consulted
Identify check-list of issues to consider
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11. Copyright Tracy Mitrano 2002
Policy Implications
What are the issues to consider for computer trespass?
Why federal intervention?
Insufficient resources at home
Help in investigation
Connections to other cases
In concert with the degree of damage
In contemplation of civil action for damages
Find the perpetrator
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12. Copyright Tracy Mitrano 2002
Policy Implications
What are the issues to consider for computer trespass?
How well can your organization control the investigation?
Previous relationship and experience with federal investigators
Degree of oversight afforded your organization
Check points in the investigation
Ability established at the outset to call off at any time
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13. Copyright Tracy Mitrano 2002
Policy Implications
What are the issues to consider for computer trespass?
Constitutionality of the measure
No fourth amendment protections
Innocent defendant and false prosecution
Guilty defendant and the exclusionary rule
Potential civil liability for university
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14. Copyright Tracy Mitrano 2002
Conclusion
Should Americans find that the Patriot Act is being used against us instead of for us, we must revisit it in the name of the constitution.
In the meantime…
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15. Copyright Tracy Mitrano 2002
Conclusion
Policy, protocols and procedures that engage the law in concert with the special mission of American higher education and the particular cultures of our colleges and universities go a long way to preserve our traditional autonomy.
(Full presentation available at this site.)
Copyright Tracy Mitrano 2002