Privacy advocates have toiled for three years to rein in the governments enhanced power under the USA Patriot Act to demand confidential customer records from American businesses, but congressional leaders instead are poised to expand the power and make it permanent.
Several of the most invasive provisions of the Patriot Act, passed hastily in the wake of the Sept. 11, 2001, terrorist attacks, are scheduled to expire at the end of this year. For businesses generally, one of the most relevant provisions is Section 215, which allows the FBI to obtain subpoenas for records simply by stating to the secret U.S. Foreign Intelligence Surveillance Court that the records sought are for an investigation related to terrorism.
Last week in a closed-door session, the U.S. Senate Select Committee on Intelligence approved a bill that would make it easier for the FBI to obtain such subpoenas. Rather than having to go to the FIS Court, the bureau would be given "administrative subpoena" authority and essentially be allowed to write and approve its own orders.
Calling the Patriot Act "a vital tool in the war on terror," committee Chairman Pat Roberts, R-Kan., defended the bill and said it provides "further checks and balances to protect civil liberties."
Currently, a business receiving an order to turn over records under Section 215 is prohibited from mentioning the order to anyone. Under the reauthorization bill approved by the committee, the recipient would be allowed to disclose the existence of the order. Also, there would be an explicit procedure established for recipients to challenge orders authorized by the FIS Court.
However, civil rights advocates maintain that the Senate bill would eliminate the need for the FBI to obtain FIS Court approval altogether.
"We think theyve put the FIS Act courts out of business," said Tim Sparapani, legislative counsel in the Washington office of the American Civil Liberties Union. "The government wont need to go the FISA courts at all."
Unlike standard subpoenas, subpoenas granted by the FIS Court do not require that the law enforcement agency demonstrate grounds to believe that the subjects were involved in a crime. According to testimony by Attorney General Alberto Gonzales earlier this year, such orders have been served on numerous businesses since the passage of the Patriot Act, including hotels, apartment complexes and ISPs.
Corporate America has been largely silent on the governments growing records seizure powers. Compliance with Section 215 orders remains secret and is immune from liability, leaving businesses no financial or legal incentive to challenge the governments growing demand for customers private information.
"Theyre all concerned about being labeled soft on terror," Sparapani said. "Its obviously terrible PR for them [to discuss it]. I think most businesses want to think it wouldnt happen to them."
White House officials are increasing the pressure on Congress to make the Patriot Act permanent, and last week President Bush delivered a speech in Columbus, Ohio, to rally support.
"The terrorist threats against us will not expire at the end of the year, and neither should the protections of the Patriot Act," the president said.
The measure is not moving as quickly in the U.S. House of Representatives, however, where open hearings continued last week.