Additional Exceptions Under the Patriot Act of 2001

Signed into law by President George Bush on October 26, 2001, the Patriot Act of 2001 authorizes new investigatory powers for law enforcement in response to terrorist attacks upon the nation. Not all of its powers are limited to use in fighting terrorism, however. The 350-page law amends over one dozen existing statutes, including the ECPA, for use in investigations of computer crime and other offenses. Some of the ECPA changes relate to the law’s protections for technologies other than the Internet, but a few circumscribe the existing privacy protections for Internet communications and usage. Not all are permanent. Many are subject to sunset provisions provided by lawmakers out of concern over potential long-term harm to civil liberties.

Under the changes, law enforcement agents are able to conduct investigations with fewer legal hindrances:

  • Agents may use the ECPA to compel cable Internet service providers to disclose customer Internet records without obtaining court orders.
  • Agents have broader authority to obtain stored voice communications. This change to the ECPA allows agents to use a search warrant for examining all e-mail as well as any attachments to e-mail that might contain communication without having to seek further court authority. This change will sunset on December 31, 2005.
  • Internet service providers may voluntarily make so-called “emergency disclosures”of information involving information previously prohibited from disclosure under the ECPA. This information includes all customer records and customer communications. The disclosures are permitted in situations involving immediate risk of death or serious physical injury to any person. However, the law merely permits such disclosure but does not create an obligation to make them. This change will sunset on December 31, 2005.

Without altering the ECPA, other provisions of the Patriot Act also increase police powers that potentially impact Internet privacy. These include:

  • Extending the authority to trace communications on computer networks in a manner similar to tracing telephone calls, along with giving federal courts the power to compel assistance from any communication provider
  • Allowing agents to obtain nationwide search warrants for e-mail without the traditional requirement that the issuing court be within the relevant jurisdiction. This change will sunset on December 31, 2005

Inside Additional Exceptions Under the Patriot Act of 2001