Urge Your Senators To Oppose Expansion of PATRIOT Act
Protect Privacy, Make Your Voice Heard!
CDT Privacy Policy
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Urge Your Senators To Oppose Expansion of PATRIOT Act
PATRIOT Expansion to be Considered June 7!
The Senate Intelligence Committee failed to reach a consensus at its mark-up last week. It is planning to reconvene to consider expansions to the PATRIOT Act on Tuesday, June 7. After weeks of debate, and seeming progress on developing appropriate limits to the PATRIOT Act, the Senate Committee is considering amendments that would go in exactly the opposite direction, including giving the FBI the power to write its own orders for disclosure of records, with no prior judicial approval.
Make Your Voice Heard: Urge Your Senator to Oppose "Administrative Subpoenas"
The proposed expansion would give the FBI so-called "administrative subpoena" power. An administrative subpoena is essentially a piece of paper signed by an FBI agent that requires any recipient to disclose any documents (or any other tangible things). They can also compel a person to give testimony, essentially forcing anyone to talk to the FBI. Administrative subpoenas are issued with no prior judicial, prosecutorial or grand jury approval. Under some previous proposals, failure to comply with an administrative subpoena could result in civil and criminal penalties, and the subpoenas would be executed in complete secrecy. In fact, under one of the previous proposals, anyone who disclosed the existence of an administrative subpoena could be subject to up to five years in prison.
Technically, a person receiving an administrative subpoena could ask for judicial review. But, in the case of subpoenas for documents, why would they? Most - if not all - administrative subpoenas for records would be issued to third-party businesses to get information about their customers. The business has immunity for complying with the subpoena and little incentive to spend its money challenging a subpoena for records that pertain to someone else. And since the business is prohibited from notifying its customer of the existence of the subpoena, the customer can never exercise his right to challenge the subpoena.
Under current law, the FBI already has far-reaching compulsory powers to obtain documents and witness' testimony when it is investigating terrorism, under both its criminal and intelligence authority. For instance, the FBI can obtain information by obtaining a search warrant, a grand jury subpoena or, in an international terrorism case, an order under the Foreign Intelligence Surveillance Act.
Given these broad existing powers, and given the fact that some of them have never even been used yet, there is no reason to go even further down the path of unchecked, essentially unreviewable authority to issue demands for documents and testimony. Retaining checks and balances - including some external review - on FBI investigations is not only good for civil liberties, but it also ensures that the FBI does not waste its resources on unnecessary fishing expeditions.
For more background, see CDT's testimony on administrative subpoenas [pdf]
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