Executive Order and Policy Directive Promotes Cybersecurity Cooperation and Intelligence Sharing

By Robert G. Scott, Jr.

On February 12, 2012, President Obama signed an Executive Order as well as a complementary Presidential Policy Directive intended to improve the flow of information and cyber-threat intelligence between government agencies and the private sector, and to improve the security of the nation’s critical infrastructure.  The policies and requirements in these documents outline an ever-increasing role for owners and operators of critical infrastructure in resisting cyber threats.

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Let the Patriot Games Continue!

Posted by Merrill Baumann

On Tuesday the Senate voted 69-30 to end debate on proposed changes to the USA Patriot Act, moving the controversial act closer to renewal. The final compromise points included provisions limiting the power of the FBI to demand records (including Internet usage) from libraries only in instances where terrorist usage is suspected.

But opponents assure that the Act will continue to be used in cases not involving terrorism. A federal judge in Florida, for example, recently concluded that nationwide search warrants obtained under Section 220 of the Patriot Act permitted federal prosecutors to obtain nationwide search warrants naming ISPs in California in a case involving a local child pornography case. Critics further point out that ISPs will be less likely to contest such warrants due to the cost of litigation outside of its local jurisdiction -- even if the warrant is deficient.

Is Canada Trying to Opt Out of the Patriot Act?

Posted by Brian Bennett

In response to concerns that the FBI can access sensitive Canadian data that the Canadian government provides to U.S. firms, a Canadian government proposal would allow Canadian government departments to cancel contracts with U.S. firms that give information about Canadians to the FBI. Draft guidelines say that the FBI can get access through U.S. firms or their affiliates to data located in Canada. Even if the Canadian government canceled a contract, though, that may not stop the U.S. government from obtaining the Canadian data. Such a cancellation could leave a firm with the choice of breaking U.S. or Canadian law, so unless Canadian law imposes severe penalties, a firm may decide it is less costly to comply with U.S. law.

Patriot Act Amendments Fail to Address Data Mining

Posted by Randy Gainer

The compromise announced December 8, 2005 by members of the conference committee working to reconcile the Senate and House versions of the Patriot Act amendments has been criticized by members of Congress and others. See, e.g., here. One significant failure of the legislation that has not gotten much attention is its failure to regulate -- or even require reports about -- federal data mining projects.

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FBI Abuses of Patriot Act Revealed

Posted by Steve Chung

The Washington Post reports that records turned over as a part of a Freedom of Information Act lawsuit indicate that the FBI has investigated hundreds of potential violations that are connected to its use of secret surveillance operations. In several of these cases, the responsible agents failed to follow Justice Department guidelines and file updates on the ongoing surveillance. In other cases, improper physical searches were conducted, bank privacy statutes were clearly violated and emails were collected after a search warrant had expired. The New York Times is also reporting the story.

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Court of Appeals Suspends Injunction Lifting Gag Order in National Security Letter Case

Posted by Randy Gainer

The Hartford Courant reports that The Second Circuit has stayed temporarily the injunction issued by U.S. District Court Judge Janet C. Hall granting a Connecticut library's motion to enjoin the government from enforcing a gag order permitted under the Patriot Act in conncection with National Security Letters. Prior reports here and here.

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Connecticut Judge Bars Enforcement of NSL Gag Order

On Friday, September 9, U.S. District Court Judge Janet C. Hall granted a Connecticut member of the American Library Association's motion for a preliminary injunction. Her ruling enjoined the government from enforcing the part of 28 U.S.C. 2709(c) that prevents the library association from revealing its identity as an organization that received a National Security Letter (NSL) from the FBI in August. The ACLU, which is both a co-plaintiff with the library organization and represents it, hailed the judge's decision, stating "the court has recognized that gagging our client from participating in the Patriot Act debate violates the First Amendment and is profoundly undemocratic." The ACLU's press release is available here.

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Update: FBI National Security Letter to Library, Authorized by the Patriot Act, Is Challenged by ACLU

The FBI issued a National Security Letter ("NSL") to a library in Connecticut that directs the library to give the FBI "any and all subscriber information, billing information, and access logs of any person related to the following [redacted]." The NSL also warns the library that "Title 18, U.S.C., Section 2709(c), prohibits any officer, employee or agent of yours from disclosing to any person that the FBI has sought or obtained access to information of records under these provisions." The FBI's use of the NSL in Connecticut is the first confirmed use of an NSL against a library, according to the New York Times (subscription req'd). [Editor: Updated to reflect Aug. 31 gag order hearing, discussed below]

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USA Patriot Act Extended

On Friday, July 29th the Senate voted in favor of making permanent the major provisions of the USA Patriot Act, following similar action by the House of Representatives earlier this year. Whereas the House version included 10-year sunset provisions on some of the controversial provisions (such as those involving roving wiretaps and library and medical records), the Senate version includes only 4-year moratoriums. These and other differences between the two bills will have to be resolved in the fall before a final version wends its way to President Bush for signature.

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