Congress approved a bill on Friday that expands the reach of the Patriot Act, reduces oversight of the FBI and intelligence agencies and, according to critics, shifts the balance of power away from the legislature and the courts.
A provision of an intelligence spending bill will expand the power of the FBI to subpoena business documents and transactions from a broader range of businesses — everything from libraries to travel agencies to eBay — without first seeking approval from a judge.
Under the Patriot Act, the FBI can acquire bank records and Internet or phone logs simply by issuing itself a so-called national security letter saying the records are relevant to an investigation into terrorism. The FBI doesn’t need to show probable cause or consult a judge. What’s more, the target institution is issued a gag order and kept from revealing the subpoena’s existence to anyone, including the subject of the investigation.
The new provision in the spending bill redefines the meaning of “financial institution.” The wider definition explicitly includes insurance companies, real estate agents, the U.S. Postal Service, travel agencies, casinos, pawn shops, car dealers and any other business whose “cash transactions have a high degree of usefulness in criminal, tax or regulatory matters.”
Justice Department officials tried earlier this year to write a bill to expand the Patriot Act. A draft — dubbed Patriot II — was leaked and caused such an uproar that Justice officials backed down. The new provision inserts one of the most controversial aspects of Patriot II into the spending bill.
Intelligence spending bills are considered sensitive, so they are usually drafted in secret and approved without debate or public comment.
Chris Schroeder, a Duke law professor and former assistant attorney general in the office of legal counsel at the Justice Department, said the re-insertion shows that “people who want to expand the powers of the FBI didn’t want to stop after Patriot II was leaked.”
“They are going to insert these provisions on a stealth basis,” Schroeder said. “It’s insidious.”
James X. Dempsey, executive director of the Center for Democracy and Technology, echoed Shroeder’s analysis.
“On its face, it’s a cryptic and seemingly innocuous amendment,” Dempsey said. “It wasn’t until after it passed both houses that we saw it. The FBI and CIA like to try to graft things like this into intelligence bills.”
House Intelligence Committee chairman Porter Goss (R-Florida) defended the new definition, saying it was necessary to keep pace with terrorists and the changing economy.
“This provision brings the definition of ‘financial institution’ up to date with the reality of the financial industry,” Goss said on the House floor. “This provision will allow those tracking terrorists and spies to ‘follow the money’ more effectively and thereby protect the people of the United States more effectively.”
The expansion surprised many in Congress, including some members of the intelligence committees who recently began reconsidering the scope of the Patriot Act.
Timothy Edgar, legislative counsel for the American Civil Liberties Union, decried the expansion of an executive power that is not subject to judicial oversight.
“The more that checks and balances against government abuse are eroded, the greater that abuse,” Edgar said. “We’re going to regret these initiatives down the road.”