THE STATUTORY AUTHORITY OF HOMELAND SECURITYfaculty.uml.edu/bleblanc/44.115/pdf/Week 2 - Statutory Authority.pdf · THE STATUTORY AUTHORITY OF HOMELAND SECURITY There are two major

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THE STATUTORY AUTHORITY OF HOMELAND SECURITY

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LEGAL REQUIREMENTS OF HOMELAND SECURITY

Jurisdiction problems as well as many other legal problems are common to both emergency management and homeland security.

The immediate situation of a disaster brings laws, ordinances, protocols, decrees, norms, and memoranda of understanding.

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LEGAL REQUIREMENTS• Duty to save -- consideration must be given to the legal obligation

to save lives and/or whether it would be negligent to not attempt saving lives under certain (relatively hopeless) situations (indemnification)

• Duty to work -- consideration must be given to the working environment for employees to ensure that workers know their job responsibilities and how, if in any way, those responsibilities conflict with any laws not directly related to emergency or security responses; i.e., civil liberties (employee release waivers; insurance; hazardous duty pay; good faith)

• Duty to care -- consideration must be given to the due diligence of efforts taken to ensure adequately qualified workers, safe workplaces, non-discrimination, and questions of responsibility if a mission goes wrong (certification; worker's compensation; women & minority rights)

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THE STATUTORY AUTHORITY OF HOMELAND SECURITY

There are two major pieces of legislation which constitute the statutes that provide homeland security with its authority:

U.S.A. Patriot Act of 2001

Homeland Security Act of 2002

In addition to these, there are important other presidential directives (PD), homeland security presidential directives (HSPD), executive orders (EO), and public laws (PL).

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THE STATUTORY AUTHORITY OF HOMELAND SECURITY

• Homeland Security Presidential Directive 39: U.S. Policy on Counterterrorism (1995) -- establishes a no-concession policy toward terrorists, and orders FEMA to implement a Federal Response Plan

• Presidential Directive 63: Protecting Critical Infrastructure (1998) -- exercises federal leadership in public/private partnerships aimed at eliminating physical and cyber vulnerabilities; establishes an office of National Coordinator, expands the FBI's National Infrastructure Protection Center, expands Commerce's Critical Infrastructure Assurance Office, and leads to sector-specific Information Sharing and Analysis Centers (ISACs)

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THE STATUTORY AUTHORITY OF HOMELAND SECURITY

U.S.A. Patriot Act of 2001• Enhances roving surveillance authority• Streamlines wiretap authorizations• Sets up anti-terrorism asset forfeiture procedures• Approves detention of suspected terrorists• Removes obstacles to investigating terrorism• Increases penalties for terrorist crimes• Removes any statute of limitations• Encourages federal involvement in domestic

preparedness exercises• Supports creation of DHS

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THE STATUTORY AUTHORITY OF HOMELAND SECURITY

Homeland Security Presidential Directive 2: Combating Terrorism Through Immigration Policies (2001) --sets up aggressive, new immigration policies to locate, detain, prosecute, and deport suspected terrorists

Homeland Security Act of 2002 -- establishes DHS as a cabinet agency, sets up the five directorates of DHS, transfers responsibilities from other agencies, migrates some agencies to DHS, allows DHS to adjust human resource rules, lays groundwork for intelligence fusion center

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THE STATUTORY AUTHORITY OF HOMELAND SECURITY

Homeland Security Presidential Directive 3: Creation of AdvisorySystem 2002 -- sets up a system of threat conditions; i.e., low = green, guarded = blue, elevated = yellow, high = orange, and severe = red

Homeland Security Presidential Directive 5: Management of Domestic Incidents 2003 -- orders DHS to develop a National Response Plan replacing (harmonizing) FEMA's Federal Response Plan

H.R.3158: Preparing America to Respond Effectively (PREPARE) Act (2003 & pending) -- amends the Homeland Security Act of 2002 to possibly revert some authority back to state and local officials on the basis of to-be-established task forces (buried in numerous committees)

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THE STATUTORY AUTHORITY OF HOMELAND SECURITY

S.2599: Information Sharing Improvement Act (2004 & pending) --expands the definition of a criminal investigation to include any national security investigation, enhances other investigation and prosecution tools (buried in committee)

S.2679: Tools to Fight Terrorism Act (2004 & pending) -- eases investigation of preparatory actions taken by "lone wolf" terrorists, immunizes officials against liability on good faith,penalizes hoaxes and false information, increases penalties for obstructing justice/providing material support in terrorism cases, expands death penalty for certain terrorist crimes not covered elsewhere (on Senate calendar and likely to pass)

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THE STATUTORY AUTHORITY OF HOMELAND SECURITY

S.2774: 9/11 Commission Report Implementation Act of 2004

• Reforms the intelligence community by creating a National Intelligence Director who is above the Director of the Central Intelligence Agency

• Moves toward eliminating ease of obtaining fake IDs,

• Adds more border guards

• Takes other measures to better coordinate interagency counterterrorism efforts

(passed into law during December 2004 after being stripped of certain immigration and state driver's license provisions)

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Is it security or civil liberties?

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Security vs. Civil Liberties

• A new world:– new threat profile, asymmetric, highly

networked;

– requiring new tools and approaches for homeland security;

• But what of our civil liberties:– right to be free from government intrusion

(privacy),

– ss well as our right of anonymity.

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… security vs. liberty

• People are mindful of the past:

– Dr. Martin Luther King;

– FBI’s Library Awareness Program;

– Federal, state and local surveillance and infiltration of domestic dissident (e.g., anti-war protesters).

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… security vs. liberty

• These cases suggest the need for a firm legal framework (transparency and oversight) regulating the power of government surveillance and intrusion;

• But little transparency (i.e., very minimal disclosures);

• And little consensus-building:– “those who scare peace-loving people with

phantoms of lost liberty … only aid terrorists”– “the charges of the hysterics are revealed for

what they are … misrepresentation … and fear”

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… security vs. liberty

• And the public response:– 140+ jurisdictions voting to oppose the USA

Patriot Act,– litigation for access to hearings and government

records,– refusal to support Patriot Act II,– passage of the Otter Amendment to prevent “sneak and peak” warrants, and

– a host of bills to roll back the § 215 authorities to require specific facts, agent of a foreign power, and a foreign intelligence purpose.

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… security vs. liberty

• But don’t assume a tsunami of unified opposition:

– September 2003 ABC poll … 58% believe FBI is intruding on privacy but 78% nevertheless prefer pro active investigations and 65% support monitoring of public spaces;

– Even in Congress, despite the legislation just mentioned, members are recognizing that “extremists on both ends who seem to be dominating the debate”

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The Effect on Programs

Total Information Awareness (TIA)• Involves Data mining of commercial

and government repositories;

• Information collected for one purpose to be used and shared otherwise.

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… programs

TSA’s Computer Assisted Passenger Prescreening System CAPPS II Government and private data

• Deficient Privacy Act notices• Ill-planned testing (JetBlue)

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… programs

Enemy Combatants (ECs): • US citizens and foreign nationals …

battlefield capture and otherwise … held in US and overseas

• Unlimited detention (Al Odah)• Right to counsel (Hamdi and Padilla)• Criminal trial or military tribunal

(Moussaoui, Mustafa Hawsawi and hundreds others

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… programs

• AG directives on enhanced investigative authorities:

• FBI overt surveillance• Use of FISA authorities

by criminal law enforcement

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A Reference Model

• The debate is polarized – viewed as either security or civil liberties;

• In point of fact, it is incumbent on government to make privacy an intrinsic element of every law enforcement and national security effort;

• Failure to do so? Loss of efforts critical to homeland security … ironic that very proponents of increased authority are actually harming our security profile.

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… model

• Is the answer “balancing” security and civil liberties?

• A little of both?

• No, rather solutions that achieve both goals:

– transparency to the extent possible

– coupled with effective oversight and redress.

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… model

• Questions that should be addressed:

– What is the threshold to focus on an individual and collect personally identifiable information?

– Specific facts or the possibility of criminal conduct?

– What information and techniques?

– What is the threshold to retain and disseminate?

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… model• Secrecy even needed secrecy presents

two real issues:

– First, a domestic intelligence process operating in substantial secrecy may not engender the required public and Congressional support for our necessary homeland security activities;

– Second, as James Madison (1788) observed in the Federalist Papers: “the accumulation of all powers …in the same hands … may justly be pronounced the very definition of tyranny.”

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… model• The bottom lines:

– "We can develop the best technology in the world and, unless there is public acceptance and understanding of the necessity, it will never be implemented."

– The road to a different society is all too easy (Hiibel v. Nevada)

– The road to homeland insecurity can be the very real consequence of extremist positions.

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The USA Patriot Act

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism

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There was little debate.

There were few conferences.

The House vote was 357-66.

The Senate vote was 98-1.

On October 26, 2001, President Bush signed the USA Patriot Act into law.

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The USA Patriot Act

Changes in federal Law that assist state and

local law enforcement

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Patriot Act - Major Areas

• Foreign Intelligence and Terrorism.– Easier to track terrorists and spies.

• Money Laundering.– Easier to follow the money.

• Immigration Laws– FBI and INS working together more closely

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Patriot Act - Major Areas

• Money and resources to combat general crime.

• Broader search warrant authority.

• Weapons to track and obtain the electronic communications of criminals.

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More DNA Samples

OLD: DNA samples taken for limited class of federal offenses are entered in FBI DNA database (CODIS).

NEW: Class of offenses greatly expanded and now includes any offense remotely associated with terrorism and any crime of violence.

•USA Patriot Act Section 503

• Affects 18 USC Sections 42 USC Section 14125a

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Electronic Crimes Centers USSS

• By Executive Order and Patriot Act

• Critical Infrastructure Assurance

• Electronic Crimes Task Force– Establish a nationwide network

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Federal Cybersecurity Assistance

NEW: $50,000,000 per year for DOJ to establish regional computer forensic laboratories to:

Assist state and local law enforcement on computer-related crime.

Do forensic examinations on seized or intercepted computer evidence.

Training to state/local LEOs and prosecutors on computer-related crime. Sharing expertise with state and local LEOs to include multi-jurisdictional task forces.

• USA Patriot Act Section 816

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Federal Benefits for Death/Injury

OLD: $100k benefit to “public safety officer” death in line of duty/on duty.

NEW: Death benefit increased to $250k.

“Total disability” benefit remains the same ($5 million cap.)

• USA Patriot Act Section 613

• Affects 42 USC Section 3796

• DOJ – BJA fact sheet at: http://www.ncjrs.org/pdffiles1/bja/fs000271.pdfhttp://www.ncjrs.org/pdffiles1/bja/fs000271.pdf

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Broader search warrant authority

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Sneak and Peek Warrants(Covert entry warrants)

OLD: Question whether and when notice required.

NEW: May enter without notice to look for – but not seize – evidence.

• Notice of search may be delayed if “reasonable cause” the notice may have adverse result.

• No-knock OK.• USA Patriot Act Section 213

• 18 USC Section 3103a

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Domestic Terrorism Warrants

NEW: Nationwide warrants for “domestic terrorism” by Federal judge in any district in which activities related to the terrorism may have occurred.

Domestic terrorism includes any acts dangerous to human life in violation of state or federal law that appear to be intended to:

Intimidate or coerce population.

Influence government policy by coercion or intimidation

Affect the conduct of government by mass destruction, assassinations, or kidnapping.

• USA Patriot Act Section 219, 802

• Affects 18 USC Section 2516(a)(c)

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Criminals use the Internet.

A quick primer.

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Criminals Use the Internet and Electronic Communications

Because ....• Cheap• Fast• One transmission – many recipients

– Email or web page.

• Easy to move money• Easy to store and transmit data• Can connect from or to anywhere• Avoid jurisdiction and venue

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How the Internet is used

• IP address –The ticket to ride the Internet.– IPs cost money.– Most IPs owned by an entity and then assigned or

loaned (Earthlink, AOL, employers)

• ISP – Internet Service Provider– They own the IP addresses.– They charge money.– They know who their customers are (so they can

bill them)

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What About Free Email Addresses?

• Anyone can get a free email address– Yahoo, Hotmail, etc. doesn’t care who you

are.– They just want to sell stuff.

• But, to use the email address, must have an IP address.– We can discover their IP address.– And then we get leads as to identity and

location.

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Joe and Susie Criminal

• JoeCriminal108@hotmail.comJoeCriminal108@hotmail.com– He lied about his identity

• SusieCriminal@hotmail.comSusieCriminal@hotmail.com– She lied about her identity

Joe and Susie send emails• Who are Joe and Susie?• Where are they?

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Susie Sends Joe an Email

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We Get Susie’s ISP

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Knowing the IP Leads to ....

• Who the IP was loaned or rented to.• When the IP was used.• How the person connected to the ISP and

maybe from where.– Phone records for dial-up connections.– Other methods of connection.

• How the person paid the ISP (Credit Cards !)• When they used the IP.• Web sites visited.• Email addresses of correspondents.

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Patriot Act Tools

to catchInternet and Email

Users

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Easier to Identify Internet Users

OLD: Court order required to obtain some information to identify Internet users.

NEW: Subpoena will get user’s method of payment (to include credit card numbers), IPs, and Internet “toll records” (session times and duration)

• USA Patriot Act Section 210

• Affects 18 USC Section 2703(d)

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Pens and Traps on Internet Use

OLD: Pen and Trap statute focused on telephones.

NEW: Can now track Internet and cell phone use –cell phone ESNs, IP addresses, email addresses, TO and FROM in emails. (But not content).

• USA Patriot Act Section 216

• Affects 18 USC Sections 3121 et. Seq.

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Criminal in NC

Trap Order for NC phone company

NC company says “We don’t have data on this call. Check with ABC phone company in TX.”

We get Trap Order for TX phone

company

TX company says, “Check with XYZ

in CA.”

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Nationwide Pen/Trap Orders

OLD: Needed Pen/Trap for each jurisdiction where the communication was routed.

NEW: Single nationwide Pen/Trap when issued by Federal judge with jurisdiction over crime under investigation.

(State Trap limited to court’s jurisdiction.)• USA Patriot Act Section 216

• Affects 18 USC Sections 3121 et. Seq.

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Nationwide Pen/TrapsMore good news

Names of specific providers don’t have to be known when Pen/Trap order obtained.

* LE can later certify the names of the specific providers to whom the order applies.

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Criminal in NC

Trap Order for NC phone company

NC company says “We don’t have data on this call. Check with ABC phone company in TX.”

NEW

LEO certifies the court order applies to the TX

(and any other) company.

OLD

Get Trap orders in different jurisdictions

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AOL ServerTemporary Storage

Wiretap

Wiretap

Sender (AOL)

Recipient (Earthlink)

STORED E-MAILS

Earthlink ServerTemporary Storage

Search Warrant

Search Warrant

Stored Emails

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Nationwide Email Searches

OLD: Needed warrant / court order / subpoena for each jurisdiction where emails are stored.

NEW: Single nationwide warrant when issued by Federal judge with jurisdiction over crime under investigation.

•USA Patriot Act Section 220

• Affects 18 USC Section 2703

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Cable Providers Can’t Hide

OLD: Cable Act prevented companies from giving LE information - even if there was a warrant.

NEW: Cable companies that provide phone and Internet services treated like ISPs and phone companies.

•USA Patriot Act Section 211

• Affects 18 USC Sections 2510 & 2701; 47 USC Section 551.

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Easier to Catch Hackers

OLD: Communications providers couldn’t ask law enforcement to catch hackers.

NEW: Communications providers can request the assistance of law enforcement to monitor and catch hackers.

• USA Patriot Act Section 217

• Affects 18 USC Section 2511

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Easier to Wiretap Hackers

OLD: Federal law did not permit wiretaps to intercept wire (human voice) communications in hacking investigations.

NEW: Feds can intercept wire communications in hacking investigations.

•USA Patriot Act Section 202

• Affects 18 USC Section 2516(a)(c)

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No Wiretap for Voice Mail

OLD: A wiretap order was required for voicemail that was stored by a communications provider.

NEW: Voicemail is treated like email and can be obtained with a search warrant, court order, or subpoena.

• USA Patriot Act Section 209

• Affects 18 USC Sections 2510 (1)

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Federal Crime – Charity Fraud

OLD: Telemarketing fraud did not include solicitations for fraudulent charities (though it was wire/mail fraud.)

NEW: Fraudulent phone solicitations for charities covered under telemarketing fraud – 5 year bump. Impersonating Red Cross – max increased to 5 years.

• USA Patriot Act Section 1011

• Affects 18 USC Sections 18 USC Sections 917, 2325-2327