BEYOND TERRORISM: THE POTENTIAL CHILLING EFFECT ON THE INTERNET OF BROAD LAW ENFORCEMENT LEGISLATION

St. John's Law Review, Spring 2006 by Gardella, Todd M

3. Enhanced Surveillance Procedures

Title II of the Patriot Act contains a series of provisions that enhance the surveillance power of the government.36 Section 201 grants the government authority to intercept wire, oral, and electronic communications where there has been evidence of material support to terrorism.37 Section 202 grants such authority in instances involving computer fraud and abuse.38 Section 209 allows for the seizure of voice mail messages.39 Section 214 deals with pen register40 and trap and trace41 authority under the Foreign Intelligence Surveillance Act ("FISA").42

These surveillance sections were enacted as "sunset" provisions, set to expire after four years.43 Considering that these sections deal directly with communications and information technology, the potential exists for such intrusion to chill communications.44 The choice to include a sunset provision seemingly demonstrates Congress's trepidation over these Sections. Of particular concern is the absence of any reference to terrorism in Section 202,45 and that the authority granted under Section 201 is triggered by the much-questioned material support Section.46

4. Access to Records

Akin to the surveillance ability granted by the Patriot Act to the government is the expansion of the ability to access records previously established by FISA.47 Section 215 has received much press for its grant of authority allowing the access of library records.48 In addition to privacy issues, there is also concern that this provision will result in a chilling effect upon people's reading habits.49 Within the context of the Internet, online vendors have claimed this provision has had an adverse impact on e-commerce, with the thrust of the dissension coming from online booksellers.50 Although the government has provided limited information to the public regarding its use of this section,51 the Justice Department disclaims any charges of abuse and suggests that concerns over library surveillance are overblown.52 As with the surveillance provisions, this section was enacted as a sunset provision, scheduled to expire after four years.53

5. National Security Letters

In Section 505 of the Patriot Act, Congress expanded the authority of the Federal Bureau of Investigation ("FBI") to issue national security letters ("NSLs") that compel communications firms-such as Internet service providers ("ISPs") or telephone companies-to produce certain customer records whenever the FBI certifies that those records are "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."54 The statute limits access to those investigations "not conducted solely on the basis of activities protected by the [F]irst [A]mendment,"55 but it also includes a non-disclosure provision, which has generated concern. Thus, while the examination of records in general may provoke apprehension over infringement on civil liberties and the potential for a derivative chilling effect, the inclusion of a nondisclosure provision raises a pure First Amendment issue.56