After nearly four years of sitting on the sidelines, corporate America finally mobilized last week to fight the FBIs expanded powers to demand sensitive customer information. However, persistent cold feet on the part of several business groups scuttled the initiative at the last minute, said sources close to the initiative.
Congress is moving rapidly to renew sections of the USA Patriot Act of 2001 that are scheduled to expire at the end of the year, including one permitting the FBI to seize a businesss records without showing probable cause that the subject is connected to criminal activity. The House passed a bill late last Thursday that would make 14 of the sections permanent and extend the records-search provision for 10 years. Two alternative bills are pending in the Senate.
Realizing that it could be a decade before the powers come up for re-examination, businesses and organizations across the nation raced to present a unified position on Capitol Hill last week. The organizations, representing myriad industries coast to coast, endorsed a letter urging Congress to restore checks and balances to the USA Patriot Acts search provisions, according to sources in Washington. However, persistent difficulties in persuading some businesses to talk delayed delivery of the letter.
Many business owners have long considered the risk in speaking out against the act in favor of customer privacy 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.
In addition, talking in the abstract about secret records searches does not necessarily generate positive publicity, and some businesses feared that it could make them wrongly appear soft on terrorism, sources said.
Health care organizations are among businesses that are now taking a strong stand against renewing the USA Patriot Act, asserting that individuals are rapidly losing the right to keep their medical history private.
"Unfortunately, theres been an assault on medical privacy," said Michael Ostrolenk, director of government affairs for the Association of American Physicians and Surgeons, in Tucson, Ariz. Ostrolenk said that before receiving authorization to demand medical records, the FBI should have to present facts connecting the records to terrorism, and doctors should be allowed to challenge such FBI orders.
Prior to the USA Patriot Act, the FBI had the power to conduct a search under the FISA if it could show probable cause that the subject of the search was a foreign power or an agent of a foreign power.
The USA Patriot Act altered the FISA so that the FBI only has to tell the secret Foreign Intelligence Surveillance Court that the records it seeks may be related to an ongoing terrorism investigation or intelligence activities, and it receives automatic authorization.
Bookstores and publishers have been vocal opponents of the unchecked search powers since passage of the USA Patriot Act, motivated by concerns about the Fourth Amendment right to privacy as well as the First Amendment right to free speech. According to U.S. Attorney General Alberto Gonzales, the USA Patriot Act has been used to authorize searches at hotels, apartment buildings and ISPs but not bookstores or libraries.