Before Congress leaves Washington for its annual recess next month, both the House and the Senate are expected to vote to renew police powers that were granted in the 2001 Patriot Act and are scheduled to expire at the end of the year.
Among the most controversial provisions up for renewal is the FBIs power to demand sensitive information on American citizens from businesses with only an order issued under the secretive Foreign Intelligence Surveillance Act.
Separate bills advancing in the House and Senate extend this provision—Section 215 of the Patriot Act—with modifications. A bill approved behind closed doors by the Senate Select Committee on Intelligence would make the power permanent and also make it even easier for the government to demand business records by authorizing the FBI to write its own search orders.
However, members of the House demonstrated last week that they are reluctant to give the FBI such permanent powers and are demanding a future expiration, or sunset, date if the police powers are renewed.
"This sunset is dealing with very sensitive—as Ive said before—powers that were given [to the] government that pose a potential threat to the liberties that we all hold dear," Rep. Jerrold Nadler, D-N.Y., said last week in arguing for inclusion of an expiration date in a bill sponsored by Rep. James Sensenbrenner, R-Wis., chairman of the House Judiciary Committee. "What is the danger of a sunset? That it makes us do a little more work? So what? This kind of thing ought to be kept front and center."
The bill that Sensenbrenner introduced would make Section 215 permanent and would increase the duration of warrants issued under the Foreign Intelligence Surveillance Act. However, it would also give recipients of an order the right to talk to a lawyer about compliance. Currently, any business that receives a demand for records under the provision is forbidden from mentioning it to anyone and has no means of challenging it.
Proponents of extending the Patriot Acts surveillance and search powers say there is no evidence that the government has abused the powers. "I would have to say weve looked diligently and have found no record of abuses," said Rep. Daniel Lungren, R-Calif.
However, advocates of including new sunset dates in the Patriot Act reauthorization said it is difficult to monitor how the law has been implemented and therefore hard to say whether abuses have occurred.
"Many times we cant even figure out where an abuse has occurred because of the general vagueness of the laws that exist right now," said Rep. John Conyers, D-Mich.
Because of the gag order accompanying Section 215 demands, businesses have been mostly silent on the law and its implementation. However, publishing companies, bookstores and libraries are vocal in their opposition and are fighting for restrictions as the Patriot Act faces reauthorization.
Calling the Sensenbrenner bill "a millimeter step in the right direction," Oren Teicher, chief operating officer at the American Booksellers Association, said the publishing industry will continue to fight for legislation that ensures due process and judicial review of such search and seizures.
"Nobody is not strongly in favor of providing the government with the necessary tools to combat terrorism," Teicher said, adding that booksellers are eager to comply with court-ordered subpoenas. "Weve never claimed theres any absolute right to privacy."
Booksellers and publishers won a small victory last month when the House included the Freedom to Read measure in a budget bill for the Department of Justice. The measure, which was authored by Rep. Bernie Sanders, I-Vt., and passed by a wide margin, denies funding for the FBI to use Section 215 of the Patriot Act to order bookstores and libraries to turn over customer records.