July 11, 2005
The Patriot Act already gives government too much power to spy on ordinary Americans, but things could get far worse. Congress is considering adding a broad new investigative power, known as the administrative subpoena, that would allow the Federal Bureau of Investigation to gain access to anyone's financial, medical, employment and even library records without approval from a judge and even without the target knowing about it. Members of Congress should block this disturbing provision from becoming law.
The Senate is at work on a bill to reauthorize parts of the Patriot Act that are scheduled to expire later this year. In addition to extending those provisions, the Senate Intelligence Committee is proposing to add an array of new "investigative tools." The administrative subpoena is not the only one of the new provisions of the current bill that would endanger civil liberties, but it is the worst.
When the F.B.I. wants access to private records about an individual, it ordinarily needs to get the approval of a judge or a grand jury. The proposed new administrative subpoena power would allow the F.B.I. to call people in and force them to produce records on its own authority, without approval from the judicial branch. This kind of secret, compelled evidence not tied to any court is incompatible with basic American principles of justice. It would also make it far easier for the F.B.I. to go off on fishing expeditions.
The bill would allow the F.B.I. to order that the subpoenas be kept secret. That means record holders, like banks or employers, would not be able to inform the person whose private information was being handed over. It would also make it difficult for Congress, and the public, to know whether the F.B.I. was abusing its enormous new powers.
Defenders of the bill argue that a subpoena could still be challenged in court, but this is a hollow right. In many cases, the person whose records would be turned over - who has the greatest incentive to fight the subpoena - would not know what was going on. The record holder, who would be in a position to challenge the subpoena, may have little incentive to spend the money and time to do so.
The bill's defenders note that administrative subpoenas are already allowed in other kinds of investigations. But these are generally in highly regulated areas, like Medicaid billing. The administrative subpoena power in the new bill would apply to anything the F.B.I. deemed related to alleged foreign intelligence or terrorism, and could, in practice, give the F.B.I. access to almost any private records it wanted.
The proposed new administrative subpoena power is a solution in search of a problem. In testimony before Congress, the F.B.I. could not point to examples of national security investigations that were deterred by its lack of administrative subpoena power.
There could be a case that the F.B.I. should have this power in true emergencies, but that would require a very narrowly drawn provision that applied only in exigent circumstances. The Senate is considering something far more sweeping and dangerous: giving the F.B.I. an open-ended license to invade the privacy of ordinary Americans.