ACLU Says Expansion of 'National Security Letter' Authority Would Allow FBI Access to Many More Business Records Without Court Oversight

November 12, 2003 12:00 am

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WASHINGTON -The American Civil Liberties Union today said that a proposal to dramatically expand the FBI’s power to obtain records without court oversight that was buried in this year’s intelligence bill and reported in today’s New York Times must not go forward because it has not been carefully scrutinized by Congress.

“This is more of the same from an administration dedicated to breaking down democratic safeguards and protections against government abuse,” said Timothy Edgar, an ACLU Legislative Counsel. “This proposal, like parts of the PATRIOT Act and similar post-9/11 security measures, operates under the premise that the White House should be able to supersede the Congress or the courts at will.”

The measure, included in this year’s intelligence authorization bill, which is currently awaiting final approval in Congress, would greatly expand the FBI’s ability to issue administrative subpoenas to a wide variety of businesses. Currently, the Bureau is permitted to use such subpoenas, which are known as national security letters and are issued on the sole discretion of FBI agents, only against traditional financial services like banks or credit unions.

Under the proposed change, agents would be able to forego court oversight when snooping into a laundry list of services, which includes a catch-all category permitting the Treasury Secretary to open practically any business to these mandatory orders for the disclosure of records if the Secretary says its transactions serve a “high degree of usefulness in criminal, tax or regulatory matters.”

Along with the catch-all provision, the proposed change specifies a number of different enterprises, including securities dealers, travel agents, pawn brokers and car dealers, to name only a few. The proposed change is similar to a request made by President Bush this summer for new law enforcement powers, which originally appeared in the draft “PATRIOT II” bill leaked from the Justice Department last February.

The practical effect of the change, the ACLU said, would be a further expansion of the FBI’s ability to force small business to invade their clients’ privacy without giving those so ordered any judicial recourse to stop unwarranted intrusions, while preventing them from informing their clients that they were forced to turn over the records.

Notably, the FBI already has the power to demand any and all business records or other “tangible things,” including those that would be opened up in the proposed change, using section 215 of the USA PATRIOT Act, which does not require individual suspicion and comes with a virtually meaningless standard of proof.

“This change is of a piece with the ‘enemy combatant’ designation, the push to permit extra-judicial military tribunals on American soil, the PATRIOT II proposal to allow the government to strip Americans’ citizenship and the anti-checks and balances parts of the PATRIOT Act,” Edgar said. “The more that checks and balances against government abuse are eroded, the greater that abuse – we’re going to regret these initiatives down the road.”

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