Congress is taking a second look at the FBIs power to seize confidential customer records from businesses without showing probable cause in a state or federal court. The controversial tactic has been the target of intense criticism since the passage of the USA Patriot Act in 2001, and even the U.S. Department of Justice concedes that maybe it goes too far.
More than a dozen of the more intrusive domestic spying provisions of the Patriot Act, passed hastily in the aftermath of the Sept. 11, 2001, terrorist attacks, are scheduled to expire at the end of the year, and Congress is holding a series of hearings this spring to determine whether to extend them. This week, while urging lawmakers to renew the expiring provisions, Attorney General Alberto Gonzales said that he was open to minor modifications to the records-seizure provision.
Hotels, apartment-building owners and ISPs are among the businesses that the FBI ordered to turn over records without demonstrating evidence that subjects were involved in crime. Under Section 215 of the Patriot Act, the government merely has to state that records are sought in an investigation related to terrorism, and the secret Foreign Intelligence Surveillance Court will authorize the search.
One reason that none of these businesses has joined the growing chorus against the Patriot Act is that the law forbids them from ever mentioning this kind of FBI order to anyone, even a lawyer. It also prohibits them from challenging the order in court.
The businesses that are speaking out against the Patriot Act are those that serve as portals to information and expression. Barnes & Noble Inc.; Borders Group Inc.; and hundreds of independent booksellers, libraries and publishers have endorsed legislation that would require the FBI to show grounds for believing that a search subject is involved in spying or terrorism.
"Booksellers have never questioned cooperating with police and law enforcers when there has been probable cause," said Linda Ramsdell, owner of The Galaxy Bookshop, in Hardwick, Vt. "What I find onerous [about the Patriot Act] is that people would ever have to question the books they want to buy."
While most retailers express a willingness to take steps to protect customer privacy, bookstores go the extra mile because of the nature of their wares.
"We see our products as a necessary component of democracy," said Ryan Coonerty, vice president of his family-owned Bookshop Santa Cruz, in Santa Cruz, Calif. "Our products are ideas."
Perhaps ironically, the FBI has not used Section 215 so far to demand records from bookstores or libraries, according to the attorney general.
"The government should not be obtaining the library records of law-abiding Americans, and I will do everything within my power to ensure that this will not happen on my watch," Gonzales told the House Committee on the Judiciary last week.
"If it hasnt been used, then I question why we need it," said Coonerty, who also serves on the Santa Cruz City Council and teaches a legal studies course at the University of California, Santa Cruz. "Youd think that if they werent using it, they wouldnt be putting up such a fight against librarians."
Last week, Sens. Larry Craig, R-Idaho, and Richard Durbin, D-Ill., introduced legislation that would require the FBI to show suspicion about individuals before ordering records from businesses under Section 215.