1.2 Establishing a legal basis to pursue security

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In the aftermath of the September 11, 2001, terrorist attacks the USA. Patriot Act was introduced by the Bush administration. Attorney General John Ashcroft wanted Congress to pass the bill, without modification, in a one-week period. Vermont Democrat Patrick Leahy, chairman of the Senate Judiciary Committee, did convince the Department of Justice (DOJ) to accept some changes, which may have saved the act from being completely overturned in court. Members of the House made many improvements to the act. The Senate and House versions were expediently reconciled, and President Bush signed the act into law on October 26, 2001.

According to the Congressional Research Service (CRS) Report for Congress entitled The USA PATRIOT Act: A Sketch, authored by Charles Doyle, senior specialist in the American Law Division, the act gives federal officials greater authority to track and intercept communications, both for law-enforcement and foreign-intelligence gathering purposes. It also vests the secretary of the treasury with regulatory powers to combat corruption of U.S. financial institutions for foreign money-laundering purposes. The act further seeks to close U.S. borders to foreign terrorists and to detain and remove those within U.S. borders. The act creates new crimes, new penalties, and new procedural efficiencies for use against domestic and international terrorists.

For the purpose of criminal investigations and the acts of tracking and gathering communications, the act modifies the procedures to do the following:

  • Permit pen register and trap-and-trace orders for electronic communications such as e-mail.

  • Authorize nationwide execution of court orders for pen registers, trap-and-trace devices, and access to stored e-mail or communication records.

  • Treat stored voice mail like stored e-mail (rather than like telephone conversations).

  • Permit authorities to intercept communications to and from a trespasser within a computer system (with the permission of the system's owner).

  • Add terrorist and computer crimes to Title III's predicate offense list.

  • Encourage cooperation between law enforcement and foreign-intelligence investigators.

  • Establish a claim against the United States for certain communications privacy violations by government personnel.

  • Terminate the authority found in many of these provisions and several of the foreign-intelligence amendments with a sunset provision (December 31, 2005).

The act eases some of the restrictions on foreign-intelligence gathering within the United States and affords the intelligence community greater access to information unearthed during a criminal investigation, while establishing and expanding safeguards against official abuse. The act also does the following:

  • Permits 'roving' surveillance (court orders omitting the identification of the particular instrument, facilities, or place where the surveillance is to occur when the court finds the target is likely to thwart identification with particularity)

  • Increases the number of judges on the Foreign Intelligence Surveillance Act (FISA) court from 7 to 11

  • Allows application for a FISA surveillance or search order when gathering foreign intelligence is a significant reason for the application rather than the reason

  • Authorizes pen register and trap-and-trace device orders for e-mail as well as telephone conversations

  • Sanctions court-ordered access to any tangible item, rather than only business records held by lodging, car-rental, and locker-rental businesses

  • Carries a sunset provision

  • Establishes a claim against the United States for certain communications privacy violations by government personnel

  • Expands the prohibition against FISA orders based solely on an American's exercise of his or her First Amendment rights

Federal agencies fight against money laundering through regulations, criminal sanctions, and forfeiture. The act bolsters federal efforts in each area. The act expands the authority of the secretary of the treasury to regulate the activities of U.S. financial institutions, particularly their relations with foreign individuals and entities and requires the secretary to promulgate regulations:

  • Requiring securities brokers and dealers, as well as commodity merchants, advisors, and pool operators to file suspicious activity reports (SARs)

  • Requiring businesses, which were only to report cash transactions involving more than $10,000 to the IRS, to file SARs as well, imposing additional 'special measures' and 'due diligence' requirements to combat foreign money laundering

  • Prohibiting U.S. financial institutions from maintaining correspondent accounts for foreign shell banks

  • Preventing financial institutions from allowing their customers to conceal their financial activities by taking advantage of the institutions' concentration account practices

  • Establishing minimum new-customer identification standards and record keeping, and recommending an effective means to verify the identity of foreign customers

  • Encouraging financial institutions and law-enforcement agencies to share information concerning suspected money-laundering and terrorist activities

  • Requiring financial institutions to maintain anti-money-laundering programs, which must include at least a compliance officer; an employee-training program; the development of internal policies, procedures, and controls; and an independent audit feature

The act contains a number of new money-laundering crimes, as well as amendments and increased penalties for earlier crimes. It outlaws the following:

  • Laundering (in the United States) of any of the proceeds from foreign crimes of violence or political corruption

  • Prohibits laundering the proceeds from cybercrime or supporting a terrorist organization

  • Increases the penalties for counterfeiting

  • Seeks to overcome a Supreme Court decision finding that the confiscation of over $300,000 (for attempt to leave the country without reporting it to customs) constituted an unconstitutionally excessive fine

  • Provides explicit authority to prosecute overseas fraud involving American credit cards

  • Endeavors to permit prosecution of money laundering in the place where the predicate offense occurs

The act creates two types of forfeitures and modifies several confiscation related procedures. It allows confiscation of all of the property of any individual or entity that participates in or plans an act of domestic or international terrorism, and it also permits confiscation of any property derived from or used to facilitate domestic or international terrorism. Procedurally, the act:

  • Establishes a mechanism to acquire long-arm jurisdiction, for purposes of forfeiture proceedings, over individuals and entities

  • Allows confiscation of property located in this country for a wider range of crimes committed in violation of foreign law

  • Permits U.S. enforcement of foreign forfeiture orders

  • Calls for the seizure of correspondent accounts held in U.S. financial institutions for foreign banks that are in turn holding forfeitable assets overseas

  • Denies corporate entities the right to contest a confiscation if their principal shareholder is a fugitive

In addition to the above, the act creates new federal crimes for:

  • Terrorist attacks on mass-transportation facilities

  • Biological weapons offenses

  • Harboring terrorists

  • Affording terrorists material support

  • Conducting the affairs of an enterprise that affects interstate or foreign commerce through the patterned commission of terrorist offenses

  • Fraudulent charitable solicitation

The act increases the penalties for acts of terrorism and for crimes that terrorists might commit. It establishes an alternative maximum penalty for acts of terrorism; raises the penalties for conspiracy to commit certain terrorist offenses; envisions sentencing some terrorists to life-long parole; and increases the penalties for counterfeiting, cybercrime, and charity fraud.

In other procedural adjustments designed to facilitate criminal investigations, the act:

  • Increases the rewards for information in terrorism cases

  • Expands Posse Comitatus Act exceptions

  • Authorizes 'sneak and peek' search warrants

  • Permits nationwide, and perhaps worldwide, execution of warrants in terrorism cases

  • Eases government access to confidential information

  • Allows the attorney general to collect DNA samples from prisoners convicted of any federal crime of violence or terrorism

  • Lengthens the statute of limitations applicable to crimes of terrorism

  • Clarifies the application of federal criminal law on American installations and in residences of U.S. government personnel overseas

  • Adjust federal victims' compensation and assistance programs

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Implementing Homeland Security for Enterprise IT
Implementing Homeland Security for Enterprise IT
ISBN: 1555583121
EAN: 2147483647
Year: 2003
Pages: 248

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