Corporate America mobilized this week
to break a nearly four-year silence on the FBI's expanded powers to demand
sensitive customer information, but persistent cold feet on the part of several
business groups killed the initiative at the last minute, sources close to the
initiative said.
Congress is moving rapidly to renew
sections of the 2001 Patriot Act that are scheduled to expire at the end of the
year, including one that permits the FBI to seize business records without
showing probable cause that the subject is connected to criminal
activity.
Several bills are pending, including a
Senate bill that would make it even easier for the FBI to conduct secretive
searches and a House bill that would renew the Patriot Act without modifications
for as long as 10 years.
Realizing that it could be a decade
before the powers come up for re-examination, business organizations across the
nation raced to present a unified position on Capitol Hill this week.
The organizations, representing myriad
industries coast-to-coast, drafted a letter urging Congress to restore checks
and balances to the act's search provisions, according to sources in
Washington.
Before the letter could be delivered,
however, a number of the business groups backed out and the initiative fell
through, sources said.
For many businesses, the risks in
speaking out against the Patriot Act in favor of customer privacy have long been
considered 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.
There are other motivations for keeping
quiet, sources said. Talking in the abstract about secret records searches does
not necessarily generate positive publicity; some businesses fear that
challenging the law would make them appear "soft on terror," and companies that
do business with the government are sometimes reluctant to challenge their
client on policy matters.
Among the few businesses that are
willing to take stand against renewing the Patriot Act without modifications are
some health care organizations.
"Unfortunately there's been an assault
on medical privacy," said Michael Ostrolenk, director of government affairs for
the Association of American Physicians and Surgeons, based in Tucson,
Ariz.
"The Patriot Act continues a long trend
of the government obtaining more authority to access records. From our point of
view, that's a dangerous trend."
Ostrolenk said that the before
receiving authorization to demand medical records, the FBI should have to
present facts connecting the records to terrorism, and that doctors should be
allowed to challenge such FBI orders. There are other industries that share the
same view, but they are reluctant to say so, Ostrolenk said.
"There are a lot of professional groups
that deal directly with the government," he said. "They want something from the
government, whereas we don't actually take anything from the
government."
Prior to the Patriot Act, the FBI had
the power to conduct a search under the Foreign Intelligence Surveillance Act if
it could show probable cause that the subject of the search was a foreign power
or an agent of a foreign power.
The Patriot Act amended FISA so that
the FBI only has to state to a secret FISA court that the records it seeks may
be related to an ongoing terrorism investigation or intelligence activities, and
it receives automatic authorization.
Bookstores and publishing firms have
been vocal opponents of the unchecked search powers since passage of the Patriot
Act, motivated by concerns about the Fourth Amendment right to privacy as well
as the First Amendment rights to free speech.
According to Attorney General Alberto
Gonzales, the Patriot Act has been used to authorize searches at hotels,
apartment buildings and ISPs, but not bookstores or libraries.