What Employers Should Know
About the Patriot Act
In
response to the tragic and shocking events of September 11, 2001, Congress
responded with unheard of swiftness to enact a new law aimed at
strengthening homeland security. A mere 45 days after 9/11, Congress passed
the USA PATRIOT ACT ("Patriot Act"), which was signed into law by
President Bush. USA PATRIOT ACT stands for "Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001." The new law has been the subject of much
debate regarding its impact on civil liberties.
The
Patriot Act allows for increased surveillance powers for both domestic law
enforcement and international intelligence agencies. It also strengthens
criminal laws against terrorism, enhances intelligence, and combats money
laundering.
The
Patriot Act's provisions regarding increased surveillance and enhanced
intelligence impact employers. The purpose of this article is to explore
those implications and the rights and obligations of employers under these
new laws. This is a brief analysis, and the Patriot Act impacts many other
areas of the law.
Government Given Greater Power
Title
II of the Patriot Act coordinates intelligence gathering and the collection
of evidence for criminal proceedings, and expands the government's ability
to utilize wiretaps and computer surveillance. It also grants the
government greater access to medical, financial, business, and educational
records and authorizes secret searches of homes and offices.
To
comply with these requirements, many employers must implement new
procedures while at the same time balancing the privacy interests of their
employees with the government's requests for information.
Amendments to the Foreign Intelligence Surveillance Act
Section
215 of the Patriot Act amends the Foreign International Surveillance Act
(FISA) to expand the surveillance capabilities of the government for the
purposes of foreign intelligence and international terrorism
investigations. Previously, under FISA, investigations and surveillance
basically applied to foreign spies. Now, however, the provisions of FISA
can be used to gather intelligence information on anyone. The target of the
investigation may be a citizen of the United States, but such
investigation may not be conducted solely upon the basis of activities
protected by the First Amendment.
Investigations
under the FISA are not constrained by the Fourth Amendment requirement of
"probable cause." They are governed by a lesser standard.
Under
the Patriot Act amendments to FISA, all the FBI
needs to do is to "specify" that the records are being
"sought for an authorized investigation" conducted to obtain
foreign intelligence information or to protect against international
terrorism or clandestine intelligence activities. The FBI can access the
records it seeks pursuant to an ex parte order under FISA. If the FBI makes
the necessary specification in its application, then the judge
"shall" enter the order.
Prior
to the Patriot Act, the FBI could only obtain records under FISA. Now, it
can obtain "any tangible thing" - - books, records, papers
documents or other items. The phrase "any tangible things"
includes not only business records but also the computer servers on which
the information is stored.
Prior
to the enactment of the Patriot Act, only certain businesses were required
to produce business records upon the government's request. The FBI could
only apply for an order authorizing a common carrier, public accommodation
facility, physical storage facility, or vehicle rental facility to release
records in its possession. The Patriot Act removes this limitation and
covers instead "any person."
Thus,
any employer can be ordered to produce "any tangible thing,"
including information that might normally be protected under other state
laws or which the employer might normally treat as private or confidential.
Moreover,
if an employer receives an order under the Patriot Act, the employer cannot
tell the employee that the FBI has sought the information. In fact, the
employer cannot tell anyone about the request except for those persons who
must know in order to produce the requested records.
An
employer who, in good faith, complies with an order under these provisions
is protected from liability for claims related to the production of the
tangible things. Moreover, the production will not be considered a waiver
of the privileged nature of the documents in any other proceeding or
context.
Increased Electronic Monitoring Authority
In
addition to increased access to all types of records, the Patriot Act
substantially changes the type of electronic communications that may be
monitored and the manner of doing so.
The
Electronic Communications Privacy Act (ECPA) was enacted in 1986 to bring
federal wiretap laws up to date and include electronic communications. The
ECPA was meant to serve as a bridge between existing law and technological
advances. The ECPA has been substantially amended by the Patriot Act
regarding the surveillance tools available to the government, making it
easier to compel disclosure of electronic communications that were formerly
protected by federal privacy laws.
For
instance, the requirements for obtaining a wiretap order directed at the
content of stored voice-mail messages have now been relaxed. The government
can get the information merely upon the issuance of a search warrant
without having to obtain a more cumbersome Title III wiretap order.
The
enhanced surveillance capability now allows the government to monitor
anyone who surfs the Web by merely asserting that this information is
"relevant" to an ongoing criminal investigation. The Patriot Act
empowers the FISC to authorize roving wiretaps to intercept communications
on any telephone or computer used by a person who is the subject of an
investigation. Therefore, a law enforcement agency can tap all phones and
computers used at work by a particular employee. The Act allows the
government to monitor the e-mail addresses that a person sends messages to,
or receives messages from, and the websites a person visits, based on a
showing that the information "likely to be obtained" is
"relevant to an ongoing criminal investigation."
Furthermore,
the Act also allows searching of Internet service providers' electronic
data banks throughout the entire nation with a single warrant, instead of
having to obtain a warrant for each defined jurisdiction.
Finally,
there is an exception for "emergency situations." An electronic
communication service provider (including an employer) can voluntarily
reveal the content of stored e-mail in circumstances of immediate danger.
If the employer has a reasonable belief that an emergency situation exists
that poses immediate danger of "death or serious physical injury to
any person." The electronic communications service provider is not
liable for disclosing this information if it is based on a reasonable
belief that an emergency exists.
What Should Employers Do?
In
light of increased government access to electronic communications and all
types of business records and expanded surveillance capabilities under the
Patriot Act, employers may be asked to comply with the FBI or other law
enforcement agencies in providing access to electronic communication
technology, employment data, personnel files or other records. Employers
need to take the following basic measures:
- Review policies
and practices regarding telephone, e-mail, and Internet usage and
privacy of employee records and information.
- Change policies
that create expectations of privacy inconsistent with an employer's
obligations under the Act.
- Put employees on
notice that they do not have a reasonable expectation of privacy in
electronic records and communications and that the Patriot Act
overrides any expectation of privacy they might have had in regard to
employment data or other communications.
- Include language
in employee handbooks and other personnel policies stating that the
employer is required by law to assist authorities under the Patriot
Act and that the Patriot Act may require the disclosure of
confidential employee information to law enforcement agencies that are
authorized to obtain that information.
- Inform employees
that generally the employer's obligations under the Patriot Act
override any other privacy obligations they may have under state or
federal law.
- Inform employees
that such information may be given to government authorities under the
Patriot Act without any notice to the employee.
- Seek legal advice
if you have questions or concerns regarding your obligation to comply
with a government request for information under the Patriot Act.
- Do not reveal
confidential employee information to non-governmental third parties
during the course of complying with a governmental request for
information.
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