Thesis on "Telecommunications Law"

Thesis 25 pages (7930 words) Sources: 1+

[EXCERPT] . . . .

Telecommunications Law

The USA Patriot Act was passed by Congress in response to the terrorist attacks of September 11, 2001. The Act allows federal officials to have greater authority in tracking and intercepting communications, for purposes of law enforcement and foreign intelligence gathering. It gives the Secretary of the Treasury regulatory powers to fight corruption of U.S. financial institutions for foreign money-laundering purposes. It more actively works to close the U.S. borders to foreign terrorists and to detain and remove those that are already within our borders. It establishes new crimes, new penalties and new procedural techniques for use against domestic and international terrorists (Patriot Act, 2009).

There has been a lot of protest over certain sections of the Patriot Act. Some of the more controversial sections of the Patriot Act include:

Section 215 which modifies the rules on records searches so that third-party holders of financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records can be searched without knowledge or consent in the even that the government says it's trying to protect against terrorism.

Section 218 adjusts the Foreign Intelligence Surveillance Act (FISA) which authorizes secret searches without public knowledge or Department of Justice accountability as long as the government can allege a foreign intelligence basis for the search.

Section 213 extends the authority of FISA searches to any criminal search. This makes it possible for secret searches to be done of one's home and property without prior notice.

Section 214 allows for the removal of the warrant requirement for Pen registers. These allow for the getting of phone numbers dialed from a suspect's telephone and Trap and trace devices which monitor the sources of all incoming calls.

Section 216 spells out that pen register/trap-and-trace authority as it applies to Internet surveillance. It changes the language to include Internet monitoring to specifically include information about dialing, routing, and signaling.

Section 206 authorizes roving wiretaps which allows taps on every phone or computer the target may use, and expands FISA to permit surveillance of any communications made to or by an intelligence target without specifying the particular phone line or computer to be monitored.

Section 505 sanctions the use of an administrative subpoena of personal records, without requiring probable cause or judicial oversight.

Section 802 makes a category of crime called domestic terrorism which penalizes activities that involve acts that are dangerous to human life and that are a violation of the criminal laws of the United States.

Section 411 makes any association with terrorists a deportable offense.

Section 412 gives the attorney general authority to order a brief detention of aliens without any prior showing or court ruling that the person is dangerous (Patriot Act, 2009).

History has shown that in times of war or threat to our country's national security, our government will tend to relax restrictions on violations of American civil liberties. Experts feel that if the government uses too much self-restraint in the surveillance and apprehension of persons presenting a potential threat to the security of the United States that our national security will be in jeopardy. Immediately after the terrorist attacks of September 11, 2001, the U.S. government responded to the perceived need for broader governmental powers in detecting and preventing future terrorist attacks by enacting the U.S.A. Patriot Act (USAPA) on October 26, 2001 (Patriot Act, 2009).

On October 26, 2001, the U.S.A. Patriot Act was singed into law by President Bush. Patriot gave comprehensive new powers to both domestic law enforcement and international intelligence agencies while eliminating the checks and balances that previously gave courts the opportunity to ensure that such powers were not abused. These checks and balances were put into place after previous misuse of surveillance powers by different agencies that have included the revelation in 1974 that the FBI and foreign intelligence agencies had spied on over 10,000 U.S. citizens, including Martin Luther King (EFF Analysis of the Provisions of the U.S.A. PATRIOT Act, 2003).

Congress had introduced the U.S.A. Patriot Act with the principal aim of preventing and punishing terrorist acts in the United States and around the world, along with enhancing law enforcement investigative tools. Given the obvious need for prompt and immediate action in the wake of September 11th, the U.S.A. Patriot Act was approved by Congress and the president without the normal procedural review processes of intensive debate and hearings. It is a lengthy piece of legislation making broad and fundamental changes to the previous law governing the executive branch's powers in law enforcement and intelligence (Patriot Act, 2009).

The most notable provision in the Patriot Act called for: the enhancement of domestic security against terrorism, the enhancement of surveillance procedures, the abatement of money laundering and terrorism financing, the protection of the northern border, the removal of obstacles to the investigation of terrorism, the provision of aid and assistance to victims of terrorism, public safety officers, and their families, increased information sharing to go on between federal, local, and state governments, the strengthening of criminal laws against terrorism and the improvement of intelligence capabilities. Even though the intent was to address the security needs of the United States in the wake of the terrorist attacks of September 11th, the act made special provisions for the preservation of the civil rights and civil liberties of all Americans. This included Arab-Americans, Muslim Americans, and Americans from South Asia, and states that every effort must be taken to preserve their safety. The Patriot Act condemned discrimination against Arab and Muslim Americans and demanded acts of violence against those individuals be punished to the full extent of the law (Patriot Act, 2009).

The enhancements of the government's power of search and seizure now permits expanded government search capabilities with less judicial oversight. The Patriot Act also greatly expanded the authority to intercept wire, oral, and electronic communications relating to terrorism, and to investigate computer fraud and abuse offenses. Instead of just enhancing the abilities of the federal government to engage in domestic surveillance of individuals, the act also calls upon citizens to report the suspicious activity of persons and businesses, thereby making the American public the eyes and ears of the government. This was intended to overcome limitations in the government's resources and ability to monitor and detect potential terrorist threats and other crimes. The government also benefits from increased powers of record examination because they can now view educational, library, medical and financial records without demonstrating evidence of commission of a crime. The government is also able to employ its newly acquired surveillance capabilities to review personal internet use (Patriot Act, 2009).

The aim of the Patriot Act was to remove hindrances to the detection and prevention of terrorist threats. In addition to enhancing the federal government's surveillance capabilities, the act made wide spread changes in the relationship between law enforcement and intelligence agencies, by breaking down traditional barriers to their coordination and cooperation. The Patriot Act provided for the expanded sharing of information that was gathered as part of criminal investigations with intelligence agencies and the expanded use of foreign intelligence surveillance tools and information in criminal investigations (Patriot Act, 2009).

History has shown that in the mid-1970s, Congressional investigations revealed extensive domestic surveillance and intelligence abuses by the executive branch of the government. Lawmakers expressed concern about the potential for civil liberties violations by domestic law enforcement and intelligence agencies. So in 1947 the National Security Act of 1947 became law. This established the Central Intelligence Agency. The law stated that the CIA would have no police, subpoena, or law enforcement powers or internal security functions. Although limitations already existed on executive branch abuses in this area, Congress tried to create a greater system of checks and balances against such abuses (Patriot Act, 2009).

Because of these Congressional investigations, the Foreign Intelligence Surveillance Act of 1978 (FISA) was enacted. This required that there be court orders for national security electronic surveillance in the United States. The intended aim of FISA was to restrain the power of the federal government, in particular law enforcement agencies of the executive branch, from engaging in unregulated domestic surveillance of individuals (Patriot Act, 2009).

Prior to the enactment of the Patriot Act there had been several attempts made to broaden and expand the government's surveillance authority. In 1995, Senator Joseph Lieberman proposed an amendment to the bill that became the Antiterrorism and Effective Death Penalty Act of 1996 which would have expanded the government's authority to conduct emergency wiretaps in cases of domestic or international terrorism. Congress, however, was reluctant to expand wiretap laws any further which led to the defeat of Senator Lieberman's amendment. Although the act significantly curtailed judicial oversight of law enforcement and intelligence activities, it did provide for congressional oversight of the executive branch's expanded powers by creating a Senate Judiciary Committee that must examine how these newly granted powers are exercised (Patriot Act, 2009).

The justification for the expansion of the executive branch's authority in the short-term was very clear at the time… READ MORE

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