As legislators meet this month to hammer out details for extending controversial provisions of the USA Patriot Act, corporate America finally has found a voice, albeit a quiet one, with which to speak out against the acts more intrusive surveillance powers.
Manufacturers, real estate companies, financial institutions and many others want Congress to restore checks and balances on the governments power to demand sensitive customer records. Booksellers and librarians have fought to rein in the expanded police powers since the USA Patriot Act was made law, but until now the rest of corporate America remained silent.
What concerns businesses most is the potential for skyrocketing costs in complying with records searches and the growing threat of litigation in other parts of the world where privacy laws are more stringent, six trade groups in Washington told Sen. Arlen Specter, R-Pa., chairman of the Judiciary Committee, in a letter last week.
The groups—the National Association of Realtors, the National Association of Manufacturers, the Financial Services Roundtable, the U.S. Chamber of Commerce, the Association of Corporate Counsel and Business Civil Liberties Inc.—expressed fear that trade secrets and other proprietary information can be too easily obtained and disseminated.
While this possibility is no different today than it was when the Patriot Act was passed, businesses are now less reluctant about taking a stand for fear of seeming unpatriotic, said Susan Hackett, senior vice president and general counsel for the ACC, in Washington, which represents corporations in-house lawyers.
"Frankly we are in a different situation than we were immediately after 9/11," Hackett said. "Congress has now had more of a chance to review the act. ... I think the business community has said its time now for Congress to be a little more deliberate in its process."
The House of Representatives and the Senate passed separate bills extending more than a dozen provisions of the Patriot Act that are scheduled to expire at years end. Lawmakers from both chambers are now preparing to work out the differences and settle on a compromise.
The business communitys concerns center on two sections of the Patriot Act, one of which empowers the FBI to obtain a secret search order from the Foreign Intelligence Surveillance Court simply by stating that the records sought are relevant to an investigation. The pending Senate bill, which businesses support, requires the FBI to show some linkage between the records and an individual suspected of being a terrorist or spy.
The other section allows the FBI to demand records without any court approval by using a "national security letter." Neither of the pending bills requires the FBI, when using a national security letter, to show any suspicion linking the records sought to a terrorist or spy. The breadth and scope of records that could be demanded under this provision could allow the FBI to demand an enormous volume of data in perpetuity, Hackett said.
"You can imagine, if theres no linkage, the blanket nature of what could be requested," she said.