Congress is moving rapidly to renew sections of the 2001 Patriot Act that are scheduled to expire at the end of the year, including one that permits the FBI to seize business records without showing probable cause that the subject is connected to criminal activity.
Several bills are pending, including a Senate bill that would make it even easier for the FBI to conduct secretive searches and a House bill that would renew the Patriot Act without modifications for as long as 10 years.
Realizing that it could be a decade before the powers come up for re-examination, business organizations across the nation raced to present a unified position on Capitol Hill this week.
The organizations, representing myriad industries coast-to-coast, drafted a letter urging Congress to restore checks and balances to the acts search provisions, according to sources in Washington.
Before the letter could be delivered, however, a number of the business groups backed out and the initiative fell through, sources said.
For many businesses, the risks in speaking out against the Patriot Act in favor of customer privacy have long been considered too high.
The act imposes a gag order on anyone who receives an FBI demand for records authorized by a secret court established by the Foreign Intelligence Surveillance Act.
There are other motivations for keeping quiet, sources said. Talking in the abstract about secret records searches does not necessarily generate positive publicity; some businesses fear that challenging the law would make them appear "soft on terror," and companies that do business with the government are sometimes reluctant to challenge their client on policy matters.
Among the few businesses that are willing to take stand against renewing the Patriot Act without modifications are some health care organizations.
"Unfortunately theres been an assault on medical privacy," said Michael Ostrolenk, director of government affairs for the Association of American Physicians and Surgeons, based in Tucson, Ariz.
"The Patriot Act continues a long trend of the government obtaining more authority to access records. From our point of view, thats a dangerous trend."
Ostrolenk said that the before receiving authorization to demand medical records, the FBI should have to present facts connecting the records to terrorism, and that doctors should be allowed to challenge such FBI orders. There are other industries that share the same view, but they are reluctant to say so, Ostrolenk said.
"There are a lot of professional groups that deal directly with the government," he said. "They want something from the government, whereas we dont actually take anything from the government."
Prior to the Patriot Act, the FBI had the power to conduct a search under the Foreign Intelligence Surveillance Act if it could show probable cause that the subject of the search was a foreign power or an agent of a foreign power.
The Patriot Act amended FISA so that the FBI only has to state to a secret FISA court that the records it seeks may be related to an ongoing terrorism investigation or intelligence activities, and it receives automatic authorization.
Bookstores and publishing firms have been vocal opponents of the unchecked search powers since passage of the Patriot Act, motivated by concerns about the Fourth Amendment right to privacy as well as the First Amendment rights to free speech.
According to Attorney General Alberto Gonzales, the Patriot Act has been used to authorize searches at hotels, apartment buildings and ISPs, but not bookstores or libraries.