night 2003 by Northwestem University School of Law INTERNET SURVEILLANCE LAW AFTER THE USA PATRIOT ACT: THE BIG BROTHER THAT ISNT Orin S. Kerr INTRODUCTION Following the September 1 l terrorist attacks on New York and Wash ington, Congress rushed into action and quickly passed antiterrorism legis lation known as the USA Patriot Act. The Patriot Act has been widely understood as a"sweeping" antiterrorism law that gave the government vast new powers to conduct electronic surveillance over the Internet The Act's surveillance provisions proved so controversial that Congress added a sunset provision that will nullify several of its key provisions after four years, on December 31, 2005. To many legislators, the vast law en- Associate Professor, George Washington University Law School. From the fall of 1998 until the summer of 2001. I was a in the Computer Crime and Intellectual Property Section of DOj's isted before the Patriot Act ence at DOJ included working with the Internet surveillance laws that e> hat influenced portions of what later became the Patriot Act I hope that my familiarity with these laws from my time in government will shed light that outshines the ccasionally myopic effect of personal experience. All of the views expressed in this Article are solely own and do not reflect the positions of the Department of Justice. Thanks to Peter Swire, Steve altzburg, Beryl Howell, Jeffrey Rosen, Dan Solove, Lee Tien, Peter Raven-Hansen, Cynthia Lee, Jon Molot, and Mark Eckenwiler for commenting on earlier drafts. All errors remain my own See Uniting and Strengthening America by Providing Appropriate To Obstruct Terrorism Act (USA Patriot Act)of 2001, Pub. L. No. 107-56, 115 Stat. 272. The formal title is the"Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism(USA Patriot Act) Act of 2001, Id. The awkward name of the USA Patriot Act rives from its legislative history: the Act combines elements of two antiterrorism bills, the Senate's USA Act, Senate Bill 1510, and the House of Representative's Patriot Act, House Bill 2975. The Senate approved the "Uniting and Strengthening America Act "(or"USA"Act) by a vote of 96 to l on October 1, 2001. The House approved the "Provide Appropriate Tools Required to Intercept and obstruct Te orism Act"(or"Patriot "Act), by a vote of 337 to 79 on October 12, 2001. The final bill started with the basic framework of the Senate bill and then added many of the components of the House bill to cre- ate a compromise bill that combined both titles to create the USA Patriot bill. The USA Patriot bill was approved by the House on October 24th by a vote of 356 to 66, passed the Senate on October 25th,a vote of 98 to 1, and was signed by President Bush on October 26th. For simplicity's sake, I will refer t the final enacted law as the "USA Patriot Act, "the Patriot Act, or simply"the Act. 2 Jesse J. Holland, New Powers To Fight New Threat: Bush Vows Stiff Enforcement of Anti Terrorism Las. SEATTLE TIMES. Oct 26. 2001. at Al See 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,$ 224, 115 Stat. 272, 295 607Copyright 2003 by Northwestern University School of Law Printed in U.S.A. Northwestern University Law Review Vol. 97, No. 2 607 INTERNET SURVEILLANCE LAW AFTER THE USA PATRIOT ACT: THE BIG BROTHER THAT ISN’T Orin S. Kerr∗ INTRODUCTION Following the September 11 terrorist attacks on New York and Wash￾ington, Congress rushed into action and quickly passed antiterrorism legis￾lation known as the USA Patriot Act.1 The Patriot Act has been widely understood as a “sweeping”2 antiterrorism law that gave the government “vast new powers”3 to conduct electronic surveillance over the Internet. The Act’s surveillance provisions proved so controversial that Congress added a sunset provision that will nullify several of its key provisions after four years, on December 31, 2005.4 To many legislators, the vast law en- ∗ Associate Professor, George Washington University Law School. From the fall of 1998 until the summer of 2001, I was a lawyer in the Computer Crime and Intellectual Property Section of DOJ’s Criminal Division. My experience at DOJ included working with the Internet surveillance laws that ex￾isted before the Patriot Act. I also commented on and helped draft the legislative proposals to amend those laws, including some proposals that influenced portions of what later became the Patriot Act. I hope that my familiarity with these laws from my time in government will shed light that outshines the occasionally myopic effect of personal experience. All of the views expressed in this Article are solely my own and do not reflect the positions of the Department of Justice. Thanks to Peter Swire, Steve Saltzburg, Beryl Howell, Jeffrey Rosen, Dan Solove, Lee Tien, Peter Raven-Hansen, Cynthia Lee, Jon Molot, and Mark Eckenwiler for commenting on earlier drafts. All errors remain my own. 1 See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act) of 2001, Pub. L. No. 107-56, 115 Stat. 272. The formal title is the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001.” Id. The awkward name of the USA Patriot Act derives from its legislative history: the Act combines elements of two antiterrorism bills, the Senate’s USA Act, Senate Bill 1510, and the House of Representative’s Patriot Act, House Bill 2975. The Senate approved the “Uniting and Strengthening America Act” (or “USA” Act) by a vote of 96 to 1 on October 11, 2001. The House approved the “Provide Appropriate Tools Required to Intercept and Obstruct Ter￾rorism Act” (or “Patriot” Act), by a vote of 337 to 79 on October 12, 2001. The final bill started with the basic framework of the Senate bill and then added many of the components of the House bill to cre￾ate a compromise bill that combined both titles to create the USA Patriot bill. The USA Patriot bill was approved by the House on October 24th by a vote of 356 to 66, passed the Senate on October 25th, a vote of 98 to 1, and was signed by President Bush on October 26th. For simplicity’s sake, I will refer to the final enacted law as the “USA Patriot Act,” “the Patriot Act,” or simply “the Act.” 2 Jesse J. Holland, New Powers To Fight New Threat; Bush Vows Stiff Enforcement of Anti￾Terrorism Laws, SEATTLE TIMES, Oct. 26, 2001, at A1. 3 Id. 4 See 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, § 224, 115 Stat. 272, 295