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2001 Federal Anti-Terror Legislation

In its first of several expected major regulatory responses to terrorism, Congress today enacted and the President will sign imminently the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism ("USA PATRIOT") Act of 2001 ("Act") .The Act takes effect immediately when signed by the President. Provisions likely to have a significant impact on colleges and universities are summarized below, organized by the institutional office or function primarily affected. If particular issues of interpretation arise, institutions should consult their legal counsel.

REGISTRAR; FOREIGN STUDENT OFFICE

  • Privacy of student records. Amends the Family Educational Rights and Privacy Act ("FERPA") to permit educational institutions to disclose education records to federal law enforcement officials without student consent in some circumstances:

    • By certifying that "specific and articulable facts" support the request, a U.S. Assistant Attorney General or a higher-ranking official may obtain a court order that requires an educational institution to turn over education records considered relevant to a terrorism investigation.

    • Institutions do not violate FERPA by responding to such an order without student consent.

    • The institution need not make a record of the disclosure, as FERPA ordinarily requires. (The U.S. Attorney General after consulting the Secretary of Education, is to issue guidelines --directed at law enforcement agencies, not educational institutions --on retention, dissemination, and use of the disclosed records.)

    • A college or university "shall not be liable to any person" for good faith disclosure of education records in response to such an order.

    • Does not explicitly amend FERPA' s "health or safety emergency" exception. The precise interplay of that exception and the Act's provisions is subject to interpretation.

  • Access to NCES survey information. Permits federal law enforcement officials to collect student information from the National Center for Education Statistics.

  • Monitoring of foreign students. Calls for full implementation, and expansion to all foreign students (other than those who hold immigrant visas), of existing law - not enforced to date by the federal government to the extent of its authority --that permits federal agencies to collect from colleges and universities information (name and address; visa classification and issuance or extension date; full-time enrollment status; and disciplinary action resulting from criminal conviction) about such students. Existing law exempts from FERPA such disclosures. New INS information requests to colleges and universities are likely.

INFORMATION TECHNOLOGY OFFICIALS

As providers of communication services, including telephones, computers, and Internet access, colleges and universities will be affected by Title II of the Act, Enhanced Surveillance Procedures. Many Title II provisions will "sunset," i.e., cease to have effect unless renewed by Congress, on December 31, 2005.

  • Voluntary disclosure of electronic communications or records. Amends the criminal code pertinent to voluntary disclosure of information by providers of electronic communication service.

    • A provider may disclose to law enforcement officials contents of an electronic communication, if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury requires disclosure without delay.

    • A provider may disclose information about a "customer" or "subscriber" (which for a college or university may include faculty, staff, students, and possibly others) in some circumstances, including to a government entity, if the provider reasonably believes that an emergency involving immediate danger of death or serious injury justifies disclosure.

  • Required disclosure of electronic communications or records. Expands the scope of technology-related information law enforcement officials may obtain through warrants, subpoenas, and court orders:

    • Permits government officials to seek stored voice-mail messages without wiretap authorization.

    • Adds categories of customer information that electronic communication service providers must disclose in response to an administrative subpoena, including subscribers' local and long distance telephone connection records; records of session times and durations; length of service and types of service; telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and means and source of payment (including credit card or bank account number).

  • Electronic surveillance. Expands the government's ability to obtain, and the scope and reach of, court orders for some electronic surveillance devices. For example:

    • Internet addresses. To cover the Internet, expands existing law enforcement surveillance authority. A so-called "pen register" or "trap and trace" device may lawfully be used to obtain dialing, routing, addressing or signaling information transmitted by wire or electronic communication, if such information does not include communication content. Unclear is whether law enforcement agencies will now be permitted to use such devices to obtain a record of URLs a user has visited. Although the statute authorizes collection of "addressing" information, a record of URLs might be considered "content."

    • Internet surveillance. Authorizes the government to install certain devices, such as "Carnivore," to track Internet use. "Carnivore" was the controversial program sponsored by the FBI that enabled government criminal investigators to intercept and collect information on the Internet. The Act as passed, unlike earlier versions, imposes on service providers no new obligation to furnish facilities or technical assistance to aid law enforcement in this regard, and authorizes compensation for reasonable expenditures incurred in providing such aid.

  • "Computer trespassers". In some circumstances authorizes providers to permit law enforcement officials and persons acting for them to intercept without a warrant communications of "computer trespassers" {persons who access protected computers without authorization) .A person who has an "existing contractual relationship with the owner or operator of the computer for access to all or part of the protected computer" is not a "computer trespasser. "

  • Computer hacking. Increases penalties for certain computer hacking crimes, including accessing and transmitting destructive programs, such as viruses, to computers. If loss exceeds $5000 --for example, if the hacker damaged university equipment --the hacker may be sued.

CAMPUS OFFICIALS WHO PROCESS SUBPOENAS AND WARRANTS

As noted above:

  • Court order for education records. Amends FERPA to permit disclosure without student consent, pursuant to a court order, of education records law enforcement officials consider relevant to a terrorism investigation.

  • Required disclosure of communications or records. Expands the scope of technology-related information law enforcement officials may obtain pursuant to warrants, subpoenas, and court orders.

  • Electronic surveillance. Amends the criminal code regarding law enforcement agency use of certain electronic surveillance devices.
Also:

  • Wiretapping. Expands law enforcement agency authority to intercept wire, oral, and electronic communications that relate to terrorism and computer fraud and abuse.

  • Business records. Amends the Foreign Intelligence Surveillance Act of 1978 ("FISA") to permit the FBI to seize, with a court order, certain business records pursuant to a terrorism or intelligence investigation. Prohibits any person from disclosing (other than to persons necessary to produce the records) that the FBI sought or obtained records under FISA.

  • Search warrants. Permits courts in some circumstances to issue a nationwide search warrant.

RESEARCH ADMINISTRATORS; ENVIRONMENTAL HEALTH AND SAFETY OFFICE

  • Biological agents and toxins. Punishes by fine and/or up to 10 years' imprisonment knowing possession of a biological agent, toxin or delivery system of a type or in a quantity not "reasonably justified" by a research or other "peaceful purpose."

  • "Select agents". Makes it a crime for nationals of countries determined to support terrorism, persons indicted for or convicted of serious crimes, and certain others to possess or transport a "select agent" (including, for example, anthrax and other agents identified in Department of Health and Human Services regulations).

  • Other legislative proposals, notably concerning bio-terrorism, are currently pending in Congress.


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