Privacy Villain of the Week:|
Congress' warrantless snoop authorizers
A U.S. Congressional Conference Committee, and now the House of Representatives, has passed an Intelligence Appropriations bill that gives the FBI the power to search through the consumer records of a wide variety of businesses without the benefit of a search warrant, as required by the Fourth Amendment of the Constitution's Bill of Rights. All that remains between passage into law is the vote of the Senate and the signature of the President.
What is at issue is the definition of "financial institution" as defined by the so-called Financial Privacy Act, which gave the FBI the power to subpoena bank records without a warrant from a federal judge. Under the Intelligence Authorization bill, that definition of "financial institution" would expand to include 26 kinds of businesses, an A-Z list in the US Code that includes, among others:
Jim Dempsey of the Center for Democracy and Technology has explained succinctly what these National Security Letters are:
- (E) any credit union;
- (F) a thrift institution;
- (G) a broker or dealer registered with the Securities and Exchange Commission under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.); . . .
- (J) a currency exchange;
- (K) an issuer, redeemer, or cashier of travelers' checks, checks, money orders, or similar instruments;
- (L) an operator of a credit card system;
- (M) an insurance company;
- (N) a dealer in precious metals, stones, or jewels;
- (O) a pawnbroker;
- (P) a loan or finance company;
- (Q) a travel agency; . . .
- (S) a telegraph company;
- (T) a business engaged in vehicle sales, including automobile, airplane, and boat sales;
- (U) persons involved in real estate closings and settlements;
- (V) the United States Postal Service; . . .
- (X) a casino, gambling casino, or gaming establishment with an annual gaming revenue of more than $ 1,000,000
- (Y) any business or agency which engages in any activity which the Secretary of the Treasury determines, by regulation, to be an activity which is similar to, related to, or a substitute for any activity in which any business described in this paragraph is authorized to engage . . .
National Security Letters are like administrative subpoenas, in that they are pieces of paper signed by FBI agents with no judicial review, compelling disclosure of documents. They are issued in intelligence investigations, which are broader than criminal investigations. In the Patriot Act, the three existing NSLs (for credit reports, bank records, and telephone/Internet billing and transactional records) were expanded by removing the requirement that the government had to have specific facts giving reason to believe that the records being sought pertained to a suspected spy or possible terrorist. Post-Patriot, the records can be compelled on the ground that they are "sought for foreign counter intelligence purposes," and as I read the language the FBI doesn't even have to specify whose records they want.
Federal agent may already have used NSLs to seize non-financial consumer records under the rubric of "transactional records." The American Library Association reports that the Justice Department's Assistant Attorney General Daniel Bryant has said that the Letters seem to have been used to look at library records. If that's the case, it would explain the discrepancy between the reports of several librarians that records were seized by agents citing the PATRIOT Act (which has National Security Letter provisions) and the insistence of Attorney General Ashcroft that no library records had been seized under another section, Section 215, of USA PATRIOT.
The Fourth Amendment is a cornerstone of privacy protection in the United States. It provides for a check and balance so that the Executive Branch cannot willy-nilly search and seize the personal effects, or in this case, business data with personal information, without the permission of a judge. Today, judges and other court officers such as magistrates, are on call 24 hours a day. There is no reason to cut judges out of this process unless the FBI agents think they are up to something a judge would not approve of.
The New York Times reports several Senators, including Larry Craig, an Idaho Republican, have urged that the provision be tabled pending further review. It remains to be seen whether or not they will gather up the momentum to send the bill back to the Conference Committee and push back this latest assault of Privacy Villainy.