: Transatlantic Turbulence: The European Union and United States Debate Over Passenger Data
By Irfan Tukdi
Irfan Tukdi is a J.D. candidate, 2008, at the Houston University Law Center. Before attending law school he worked as a technology risk consultant in the public accounting industry. He received his Bachelor of Arts in Economics and Bachelor of Arts in Business Administration in Management Information Systems from the University of Texas at Austin.
Note: This research guide takes the form of an annotated outline and is intended to serve as a starting point for exploring the legal issues raised by the PNR debate (passenger flight manifests and other passenger data commonly referred to as PNR data). The guide includes references to the relevant statutory materials, government documentation, legal scholarship, and pertinent news. Sources in each sub-section are organized by breadth of treatment and chronology as appropriate.
Published May 2007
Introduction
Effect on International Relations
SECTION II: DATA PRIVACY IN THE UNITED STATES
A. HISTORY AND BACKGROUND OF DATA PRIVACY
B. FREEDOM OF INFORMATION ACT OF 1966
SECTION III: US ANTI-TERROR LEGISLATION AND THE RESULTING PNR DEBATE
Enhanced Border Security and Visa Entry Reform Act of 2002
Maritime Transportation Security Act of 2002
Aviation and Transportation Security Act
Air Transportation Safety and System Stabilization Act
Computer Assisted Passenger Screening (CAPS)
Computer-Assisted Passenger Prescreening System (CAPPS II)
Sources Supporting CAPPS II and Passenger Profiling
C. PNR (PASSENGER NAME RECORD) DISPUTE
US Perspective on Collection of PNR Data
EU Perspective on US Privacy Standards
SECTION IV: PARLIAMENT'S CHALLENGE AND THE RESULTING ECJ DECISION
SECTION V: POTENTIAL MODELS FOR A GLOBAL AGREEMENT ON DATA PRIVACY
B. BILATERAL MODELS: TAX, INVESTMENT, AND ANTI-TRUST AGREEMENTS
The notion that the September 11, 2001 ("9/11") terrorist attacks dramatically changed America is uncontestable. Fully five years after the fall of the twin towers, the effects of the attacks are prevalent in our daily lives: national security promises to be the decisive issue in the upcoming presidential election[1] and debates on immigration reform dominate talk-radio conversations.[2] More important, however, the attacks have forced citizens to barter civil liberties for increased domestic security.[3]
While these tradeoffs have been highly contentious, the period immediately following the attacks produced an environment of swelling national unity.[4] This newfound cooperative spirit facilitated the swift passage of broad, sweeping legislation to address the nation's security concerns.[5] However, numerous critics voiced concerns at the breadth of the anti-terrorism legislation and argued that it posed a threat to civil liberties. The broadest and most controversial enactment of the post 9/11 era is the Uniting and Strengthening America by Providing Appropriate Tools Required to Obstruct Terrorism Act ("Patriot Act").[6] The Patriot Act greatly expands federal law enforcement agents' power to combat terrorism. Specifically, the Act broadens federal agents' authority to wire-tap, seize personal documents including phone bills, emails, business files, and even library records. The Act has been the primary battleground in the domestic order vs. liberty debate.[7]
The Patriot Act, however, is only one of a series of laws enacted after the 9/11 attacks to bolster domestic security.[8] It is also, regrettably, not the only one that has poses grave threats to civil liberties. Though the Patriot Act is rarely cited as an example of legislative restraint, it was signed into law almost two months after the attacks. Congress responded much more swiftly, however, with legislation aimed at revamping the federal aviation security legislative framework and protecting the tattered airline industry from further harm. A mere two weeks after the attacks, Congress enacted the Air Transportation Safety and System Stabilization Act (ATSSSA), and in the following months the Aviation and Transportation Security Act (ATSA) was signed into law.[9] The ATSSSA provided airlines with access to substantial short-term funding in the form of loans and grants and established a Victims Compensation Fund for individuals injured in the attacks and for the survivors of those who were killed.[10] The ATSA authorizes the creation of the Transportation and Security Administration and charges this new federal agency with developing new aviation security procedures and guidelines. The ATSA further mandates that airlines traveling to or from the United States provide passenger flight manifests and other passenger data (commonly referred to as PNR data) including passengers' names, credit card information, and even meal preferences to the Bureau of Customs and Border Protection (CBP).[11] Airlines failing to comply with the ATSA's disclosure requirements face stiff monetary fines and the possibility of losing landing privileges at US airports.[12] Because Europeans are the largest single group of foreign travelers to the US, CBP focused on securing European airlines' compliance with the new rules.[13] This proved to be more difficult than expected because the ATSA's disclosure requirements squarely conflict with the European Union Directive 95/46 regarding data privacy and implementing laws of the member states.[14] Indeed, the EU representatives recognized and valued the underlying goals of the US's anti-terrorism legislation, but nonetheless insisted on compatibility with European laws.[15] As such, the European Commission embarked on what would become a two year negotiation with CPB officials to arrive at an agreement which would clarify the disclosure requirements for European airlines while ensuring compliance with EU law.[16] After close to two years of negotiations with the CBP, the European Commission arrived at a three part resolution: a set of Undertakings adopted by CBP,[17] an adequacy determination by the Commission,[18] and the actual agreement between the Commission and CBP.[19] The Commission's solution was not well received by European civil liberties groups.
Seemingly fueled by the outcry from privacy protection interest groups and Working Party 29's adverse report on the Undertakings, the European Parliament challenged the legal validity of the agreement in a complaint filed with the European Court of Justice (ECJ). The Parliament's protest about data protection inadequacy was somewhat sidestepped by the ECJ. The Court found, on somewhat of a technicality, that the Commission did not have the authority to come to an agreement regarding the transfer of PNR data.[20] The Court stated that though the agreement was based on the Data Protection Directive which falls under the EU's First Pillar[21]-that governs social and economic policies-the agreement with the US should have fallen into the authority of the Third Pillar-which governs criminal matters.[22] The agreement was subsequently annulled. Attempts at renegotiation between the US and the EU regarding PNR data continued but failed to meet the October 1, 2006 deadline imposed by the ECJ to arrive at a new agreement.[23] However, days later on October 6, a "temporary arrangement"[24] lasting until July 31, 2007 was agreed upon. The new agreement already is not without much of the same criticism that inundated the previous agreement and will undoubtedly need further negotiations and revisions.[25]
Sources:
· Colin Bennett, Regulating Privacy: Data Protection and Public Policy in Europe and the United States (Cornell University Press 1992) (discussing the "pressure to globalize data protection").
· David H. Flaherty, Protecting Privacy in Surveillance Societies (University of North Carolina Press 1989) (discussing the early history of data protection in Germany, Sweden, France, Canada, and the United States).
· Frits W. Hondius, Emerging Data Protection in Europe (Elsevier Science & Technology Books 1975) (focusing on computer privacy).
· Francesca Bignami, Transgovernmental Networks vs. Democracy: The Case of the European Information Privacy Network, 26 Mich. J. Int'l L. 807 (2005) (discussing the regulation of international data transfer).
· Patrick E. Cole, New Challenges to the U.S. Multinational Corporation in the European Economic Community: Data Protection Laws, 17 N.Y.U. J. Int'l L. & Pol. 893 (1985) (analyzing effect of European data privacy laws on international business).
· Gail Lasprogata, et al., Regulation of Electronic Employee Monitoring: Identifying Fundamental Principles of Employee Privacy Through a Comparative Study of Data Privacy Legislation in the European Union, United States and Canada, 2004 Stan. Tech. L. Rev. 4 (2004) (surveying "regulation of electronic employee monitoring in the European Union (EU), the United States, and Canada and attempts to reconcile conflicting legal standards regarding workplace privacy as they are evolving in the wake of technological advances and managerial needs").
· Graham Pearce & Nicholas Platten, Orchestrating Transatlantic Approaches to Personal Data Protection: A European Perspective, 22 Fordham Int'l L.J. 2024 (1999) (noting that differences between the EU's and the U.S.'s view on data privacy arises from different views about the role of government and what amount of private self-regulation is adequate in protecting privacy).
· Paul M. Schwartz, European Data Protection Law and Restrictions on International Data Flows, 80 Iowa L. Rev. 471 (1995) (describing the European privacy standard and issues of international data protection).
· Mike Ewing, Comment, The Perfect Storm: The Safe Harbor and the Directive on Data Protection, 24 Hous. J. Int'l L. 315 (2002) (outlining history of European data privacy).
· European Commission, Data Protection (current website of European Commission detailing history and studies of data protection).
o Data Protection - Legislative Documents
o Commission Decisions on the Adequacy of the Protection of Personal Data in Third Countries
· The Global Encyclopaedia of Data Protection Regulations. (Jan Holvast et al. eds. 1999).
§ Summary: The Organisation for Economic Cooperation and Development is an international body whose mission is to coordinate and develop international economic, social, and environmental policies. The Guidelines were formulated to harmonize privacy legislation while ensuring the uninterrupted flow of data.
§ Sources:
· 1979 Parliament Resolution, O.J. C 140/34 (1979).
· Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, OECD Doc. 58 (Sept. 23, 1980), available at http://www.oecd.org
· Explanatory Memorandum to Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data, PP7-14, OECD Doc. C(80)58(Final) (1980), reprinted in 20 I.L.M. 422.
· OECD, Policy Issues in Data Protection and Privacy : Concepts and Perspectives : Proceedings of the OECD Seminar 24th to 26th June 1974 (OECD Publications Center 1974).
· Colin Bennett, Regulating Privacy: Data Protection and Public Policy in Europe and the United States (Cornell University Press 1992) (discussing the difficulty in negotiating and agreeing upon the OECD Guidelines).
· G. B. F. Niblett, Digital Information and the Privacy Problem (Organisation for Economic Cooperation and Development, 1971).
· Robert G. Boehmer & Todd S. Palmer, The 1992 EC Data Protection Proposal: an Examination of its Implications for U.S. Business and U.S. Privacy Law, 31 Am. Bus. L.J. 265 (1993) (comparing and contrasting Convention with OECD guidelines).
· Hon. Justice Michael Kirby, Legal Aspects of Transborder Data Flows, 11 Computer/L.J. 233 (1991) (discussing motivation and debate leading to creation of OECD guideline).
· P. Howard Patrick, Privacy Restrictions on Transnational Data Flows: A Comparison of the Council of Europe Draft Convention and the OECD Guidelines, 21 Jurimetrics J. 405 (1981).
§ Summary: The objective of the Convention is to strengthen legal protections of individuals with regard to their personal data.
§ Sources:
· Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data, January, 1981, art. 1, Europ. T. S. No. 108.
· Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data, Explanatory Report, opened for signature Jan. 28, 1981, Europ. T.S. No. 108 § 18
· Draft Explanatory Report on the Draft Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data, Council of Europe, CJ-CD (80) 1, Addendum (Jan. 1980), reprinted in 19 I.L.M. 299, 300.
· Resolution on the Protection of the Privacy of Individuals vis-ŕ-vis Electronic Data Banks in the Private Sector, Res. (73)22, Council of Europe, Comm. of Ministers, 224th mtg. (1973); Resolution on the Protection of the Privacy of Individuals vis-ŕ-vis Electronic Data Banks in the Public Sector, Res. (74)29, Council of Europe, Comm. of Ministers, 224th mtg. (1974) (precursors to the Convention for the Protections of Individuals).
· Robert G. Boehmer & Todd S. Palmer, The 1992 EC Data Protection Proposal: an Examination of its Implications for U.S. Business and U.S. Privacy Law, 31 Am. Bus. L.J. 265 (1993) (comparing and contrasting Convention with OECD guidelines).
· Frank Cali, Europol's Data Protection Mechanisms: What do They Know and Whom are They Telling?, 10 Touro Int'l L. Rev. 189 (2000) (describing the Convention as the basis for current European data protection).
· Rosario Imperiali d'Afflitto, European Union Directive on Personal Privacy Rights and Computerized Information, 41 Vill. L. Rev. 305 (1996) (noting that the Convention propagated data protection laws throughout Europe).
· Mike Ewing, Comment, The Perfect Storm: The Safe Harbor and the Directive on Data Protection, 24 Hous. J. Int'l L. 315 (2002) (describing the Convention and the OECD Guidelines as some of the "first European attempts to consolidate and harmonize national data protection legislation").
§ Summary: The EU Data Protection Directive became effective in 1998. Directives enact EU policy objectives. "They require member states to enact or change relevant national law to achieve those objectives while allowing enough flexibility to retain national legal traditions. Therefore, directives are the most prevalent form of EU law." Nancy J. King & Brian J. King, Creating Incentives for Sustainable Buildings: A Comparative Law Approach Featuring the United States and the European Union, 23 Va. Envtl. L.J. 397 (2005).
§ Sources:
· Council Directive 95/45/EC of the European Parliament and of the Council of the European Union of Oct. 24, 1995 - Part 1; Part 2.
· Legislative History of Data Privacy Directive, Eur. Parl. Doc. (COD/1990/0288)
· Council Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, COM (92) 422 final-SYN 287 (Brussels, Oct. 15, 1992).
· Proposal for a Council Directive Concerning the Protection of Individuals in Relation to the Processing of Personal Data, 1990 O.J. (C 277) 3.
· Report from the Commission: First Report on the Implementation of the Data Protection Directive (95/46/EC) COM (2003) 265 final (Brussels, Oct. 15, 2003).
· Christopher Kuner, European Data Privacy Law and Online Business (Oxford University Press 2003) (analyzing the effect of the data protection directive on e-commerce).
· Peter P. Swire & Robert E. Litan, None Of Your Business: World Data Flows, Electronic Commerce, and the European Privacy Directive (Brookings Institution Press 1998) (examining aspects of the data protection directive in detail).
· Data Protection Directive and Medical Research across Europe (Deryck Beyleveld et al. eds., 2005) (the data protection directive's affect on medical data privacy).
· Fiona M. Carlin, The Data Protection Directive: The Introduction of Common Privacy Standards, E.L. Rev. 1996, 21(1), 65-70 (1996) (introducing provisions of the data protection directive).
· Fred H. Cate, The EU Data Protection Directive, Information Privacy, and the Public Interest, 80 Iowa L. Rev. 431 (1995) (examining the scope and basic protections offered by the data protection directive).
· Andrew Charlesworth, Information Privacy Law in the European Union: E Pluribus Unum or Ex Uno Plures?, 54 Hastings L. J. 931 (2003) (discussing the Commission of the European Union's 2002 review of the Data Privacy Directive).
· Christopher Kuner, Privacy, Security and Transparency: Challenges for Data Protection Law in a New Europe, 16 Eur. Bus. L. Rev. 1 (2005).
· Jeffrey B. Ritter et al., Emerging Trends in International Privacy Law, 15 Emory Int'l L. Rev. 87 (2001) (examining several global models of data privacy).
· Spiros Simitis, From the Market to the Polis: The EU Directive on the Protection of Personal Data, 80 Iowa L. Rev. 445 (1995) (outlining history of the data protection directive).
· Michael W. Heydrich, Note, A Brave New World: Complying with the European Union Directive on Personal Privacy Through the Power of Contract, 25 Brook. J. Int'l L. 407 (1999) (evaluating contractual exceptions to the EU directive).
· Tracie B. Loring, Comment, An Analysis of the Informational Privacy Protection Afforded by the European Union and the United States, 37 Tex. Int'l L.J. 421 (2002) (discussing origins of EU and US privacy law and the possibility of the EU Data Protection Directive serving as a model for other countries).
· The 'Privacy' Game, Wall St. J., June 21, 1999, at A26 (calling the EU data protection directive "nonsensical and probably unenforceable").
· Glenn R. Simpson, Businesses Criticize U.S.-EU Privacy Pact As Hurdle to Global E-Commerce Efforts, Wall St. J., April 6, 2000, at A24 (claiming that the data protection directive impedes trans-Atlantic business).
· Fred H. Cate, The Changing Face of Privacy Protection in the European Union and the United States, 33 Ind. L. Rev. 173 (1999) (outlining basic principles and implementation of European and U.S. privacy law).
· Andrew Charlesworth, Clash of the Data Titans? US and EU Data Privacy Regulation, 6 Eur. Pub. L. 253 (2000).
· The EC Privacy Directive and the Future of U.S. Business in Europe: A Panel Discussion, 80 Iowa L. Rev. 669 (1995) (panel discussion about reaching a "convergence" in data privacy protection between Europe and the U.S.).
· Julia M. Fromholz, The European Data Privacy Directive, 15 Berkeley Tech. L.J. 461 (2000) (exploring background of EU directive and comparing EU privacy laws with US privacy laws).
· Reconciliation of the EU Privacy Directive and U.S. Objections To It, 6 Int'l Cont. Adviser 27 (2000).
· Priscilla M. Regan, The Globalization of Privacy: Implications of Recent Changes in Europe, 52 Am. J. of Econ. & Sociology 257 (1993) (predicting unavoidable strengthening of US privacy law in response to EU directive).
· Steven R. Salbu, The European Union Data Privacy Directive and International Relations, 35 Vand. J. Transnat'l L. 655 (2002) (examining the history leading up to the data protection directive and the effects of the directive within Europe and internationally).
· Gregory Shaffer, The Power of EU Collective Action: the Impact of EU Data Privacy Regulation on US Business Practice, European Law Journal 5 (4) (analyzing dispute between EU and US over adequacy of US data privacy protection).
· Alexander Zinser, International Data Transfer Out of the European Union: The Adequate Level of Data Protection According to Article 25 of the European Data Protection Directive, 21 J. Marshall J. Computer & Info. L. 547 (2003) (discussing the principles for transfer of data to third countries).
· Amy Monahan, Note, Deconstructing Information Walls: The Impact of the European Data Directive on U.S. Businesses, 29 Law & Pol'y Int'l Bus. 275 (1998) (examining US and European approaches to data privacy, considers impact of EU directive, and calls for legislative data protection reform in the US).
· Patrick J. Murray, Comment, The Adequacy Standard Under Directive 95/46/Ec: Does U.S. Data Protection Meet This Standard?, 21 Fordham Int'l L.J. 932 (1998) (analyzing development of data protection in Europe and the U.S. in the public and private sectors).
· Paul Rose, Comment, A Market Response to the European Union Directive on Privacy, 4 UCLA J. Int'l L. & Foreign Aff. 445 (1999) (arguing for the resolution of privacy concerns not by comprehensive legislation but market forces).
· Gregory Shaffer, Globalization and Social Protection: The Impact of EU and International Rules in the Ratcheting Up of U.S. Privacy Standards, 25 Yale J. Int'l L. 1 (2000) (noting that the EU standard of privacy inevitably reaches far beyond Europe).
· Gary E. Clayton, Eurocrats Try to Stop Data at the Border, Wall St. J., Nov. 2, 1998, at A34 (claiming that some of the side-effects of the directive are absurd).
· Bob Sherwood, Over the Border, Against the Rules: DATA TRANSFER: Many Organisations Are Regularly Breaking EU Regulations on Data Protection Without Even Knowing It, Fin. Times, Oct. 21, 2002, at 20 (noting the difficulty in preventing illegal data transfer that occurs during day-to-day business activities).
§ Summary: The 2002 EU Privacy Directive seeks to protect the privacy rights of individuals with respect to personal data processing in the electronic communication sector.
§ Sources:
· Directive 2002/58/EC of the European Parliament and of the Council, 2004 O.J. (L 201) (EC)
· Christopher Kuner, European Data Privacy Law and Online Business (Oxford University Press 2003) (analyzing the effect of the Privacy Directive on e-commerce).
· Peter P. Swire & Robert E. Litan, None Of Your Business: World Data Flows, Electronic Commerce, and the European Privacy Directive (Brookings Institution Press 1998) (examining aspects of the Privacy Directive in detail).
· Frederic Debusseré, The EU E-Privacy Directive: A Monstrous Attempt to Starve the Cookie Monster?, 13 Int'l J.L. & Info. Tech. 70 (2005) (noting that the privacy directive replaced Directive 97/66/EC and was not immediately adopted by all EU member states).
· Chuan Sun, The European Union Privacy Directive and its Impact on the U.S. Privacy Protection Policy: A Year 2003 Perspective, 2 Nw. J. Tech. & Intell. Prop. 5 (2003) (describing data privacy directive and how it differs from Safe Harbor laws).
§ Robert M. Gellman, Fragmented, Incomplete, and Discontinuous: The Failure of Federal Privacy Regulatory Proposals and Institutions, 6 Software L.J. 199 (1993) (outlining history of data protection within the US and noting that the US had previously been the most innovative in addressing the concept of data privacy).
§ Fred H. Cate, The Changing Face of Privacy Protection in the European Union and the United States, 33 Ind. L. Rev. 173 (1999) (noting that Congress has "virtually ignored" privacy issues for decades).
§ Paul M. Schwartz, Privacy and Participation: Personal Information and Public Sector Regulation in the United States, 80 Iowa L. Rev. 553 (1995) (discussing the difference between the 'participatory information' protection of the EU and the 'information seclusion' protection of the US).
§ Summary: The Freedom of Information Act (FOIA) is a federal statute that provides that individuals with the right to request access to federal agency records. The FOIA was amended by the Electronic Freedom of Information Act Amendments of 1996 (E-FOIA). E-FOIA grants the public access to government documents via computer communications.
§ Sources:
· Freedom of Information Act, 5 U.S.C. §552 (1976).
· FOIA Legislative History, http://www.gwu.edu/~nsarchiv/nsa/foialeghistory/legistfoia.htm (detailing legislative history of the FOIA, including its 1974, 1976, 1986, 1996, and 2002 amendments).
· US Department of State Website, http://foia.state.gov/default.asp (provides general information about the FOIA and the E-FOIA and provides direct access to commonly requested documents pursuant to the act).
· Herbert N. Foerstel, Freedom of Information and the Right to Know : The Origins and Applications of the Freedom of Information Act (Greenwood Press 1999) (examining the development and usability of the FOIA).
· Christopher M. Mason, Comment, Developments Under the Freedom of Information Act-1981, 1982 Duke L.J. 423 (1982) (general overview of the FOIA).
· Kristen Elizabeth Uhl, Comment, The Freedom of Information Act Post-9/11: Balancing the Public's Right to Know, Critical Infrastructure Protection, and Homeland Security, 53 Am. U. L. Rev. 261 (2003) (describing the FOIA and its evolution from 1966, and the "erosion" of the public's access to government information under the Bush administration).
§ Summary: The Privacy Act attempts to "regulate the collection, maintenance, use, and dissemination of personal information by federal executive branch agencies."
§ Sources:
· Privacy Act of 1974, 5 U.S.C. §552a (1994).
· Legislative History of the Privacy Act See House Comm. on Gov't Operations and Senate Comm. on Gov't Operations, S. 3418, 94th Cong. (2d Sess., 1976) (Public Law 93-579) (the entire legislative history of the Privacy Act can be found in this source book).
· Justin D. Franklin & Robert F. Bouchard, Guidebook to the Freedom of Information and Privacy Acts (Thomson West 1986).
· James Beverage, The Privacy Act of 1974: An Overview, 1976 Duke L.J. 301 (1976).
· Todd R. Coles, Does the Privacy Act of 1974 Protect Your Right to Privacy? An Examination of the Routine Use Exemption, 40 Am. U. L. Rev. 957 (1991) (examining if the routine use exemption undermines the safeguarding of individual privacy intended by the Privacy Act).
· US Department of Justice Website (providing an overview of the history, objectives, and provisions of the Privacy Act).
§ Summary: The Homeland Security Act (HSA) of 2002 consolidated many of the federal agencies responsible for border and transportation security into a single department, the Department of Homeland Security (DHS). The principal sub-departments of DHS include: Transportation Security Agency (TSA), and Immigration, Customs Enforcement (ICE), and Bureau of Customs and Border Protection (CBP). The CPB, in turn, includes the inspections service of the former Immigration and Naturalization Services (INS), the U.S. Border Patrol, the inspections service of the U.S. Customs Service, and the border-related inspection programs of the Animal and Plant Health Inspection Service (APHIS).
§ Sources:
· Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135.
· Homeland Security Act: Analysis
· Press Release, The White House, Executive Order Establishing Office of Homeland Security (Oct. 8, 2001) (Executive Order establishing the Office of Homeland Security and the Homeland Security Council)
· US Coast Guard Website (providing a comprehensive, searchable collection of pertinent legislative history documents in text and .pdf formats)
· Donald F. Kettl, Department of Homeland Security's First Year: A Report Card (The Century Foundation 2004) (evaluating effectiveness of DHS and problems it encountered in its first year).
· Jonathan Thessin, Department of Homeland Security, 40 Harv. J. on Legis. 513 (2003) (detailed analysis of the HSA).
· Darren W. Stanhouse, Comment, Ambition and Abdication: Congress, the Presidency, and the Evolution of the Department of Homeland Security, 29 N.C. J. Int'l L. & Com. Reg. 691 (2004) (noting the possibility of abuse of power that arises from the HSA).
· Jackie Calmes, Senate Approves Homeland Bill With 90-9 Vote, Wall St. J., Nov. 20, 2002, at A6 (announcing the creation of the new homeland-security department).
· Newt Gingrich, Congress's Tangled Purse Strings, Wall St. J., June 10, 2002, at A16 (praising the proposal to create a DHS but pointing out that structural reform is needed to make it effective).
· Nicholas Kulish, House Panel Votes Down Parts Of Homeland-Security Plan, Wall St. J., July 12, 2002, at A4 (describing the challenges in restructuring agencies into the new DHS).
· Washington's Mega-Merger, The Economist, Nov. 23, 2002 (predicting challenges the DHS will face such as logistical issues, budget problems, and conflicts with civil libertarians).
§ Summary: The USA Patriot Act was enacted shortly after the September 11, 2001 terrorist attacks in order to provide the federal government with increased authority to track and intercept communications, both for law enforcement and foreign intelligence gathering purposes. The Act empowers the US Secretary of Treasury to investigate and prosecute U.S. financial institutions for foreign money laundering. The Act creates new crimes, penalties, and provides for more efficient procedures to combat terrorist threats. The Act has been widely criticized by civil rights groups and has been welcomed and appreciated by law enforcement. See George Anastaplo, September Eleventh, the ABC'S of a Citizen's Responses: Explorations, 29 Okla. City U. L. Rev. 165, 342 (2004).
§ Sources:
· Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.
· Legislative History: The USA PATRIOT Act has a short legislative history. It was introduced shortly after the September 11, 2001 terrorist attacks and was signed into law on October 26, 2001.
o Sponsor: Rep Sensenbrenner, F. James, Jr. [R-WI] (introduced 10/23/2001).
o The Center for Democracy and Technology Website (providing key documents from the legislative history of the PATRIOT Act).
· Congressional Debates on Reauthorization of Patriot Act
· Patriot Debates: Experts Debate the USA PATRIOT Act (Stewart A. Baker et al. eds., 2005) (examining both sides of controversial aspects of the Patriot Act).
Support for the Patriot Act:
o Press Release, U.S. Department of Justice, Fact Sheet: USA Patriot Act Improvement and Reauthorization Act of 2005 (Mar. 6, 2006) (announcing the reauthorization of the Patriot Act-H.R. 3199-with several amendments).
o Press Release, Department of Homeland Security, Fact Sheet: The USA Patriot Act - A Proven Homeland Security Tool (Dec. 14, 2005) (citing specific examples of where the Patriot Act has been successful).
o Tracey T. Gonzalez, Individual Rights Versus Collective Security: Assessing the Constitutionality of the USA Patriot Act, 11 U. Miami Int'l & Comp. L. Rev. 75 (2003) (concluding that the Patriot Act adequately balances national security with protecting individual privacy).
o John Ashcroft, Attorney General, The Patriot Act: Wise Beyond Its Years, Wall St. J., Oct. 26, 2004, at A24 (stating that the Patriot Act is a "phenomenal success").
o Eric Posner & John Yoo, The Patriot Act Under Fire, Wall St. J., Dec. 9, 2003, at A26 (arguing that the Patriot Act's "changes are modest and are worth the small, if any, reduction in civil liberties").
Critiques of the Patriot Act