The average American is most likely to come in contact with the USA
Patriot Act in the world of finance.
If you apply for a bank account or a credit card, the bank or card
company may tell you that under Section 326 of the Patriot Act, they
must now run your name against a secret list of terrorists or terrorist
organizations provided to financial institutions by government agencies
to determine whether your name appears on any such list.
There is no way of knowing whether your name appears on such a list and,
if it does, on what grounds it was put there and by whom.
In 1978, Congress passed the Right to Financial Privacy Act, which
limited government prying into an American's financial affairs. "A
legitimate law enforcement agency" was the only arm of government that
could demand your records from a consumer reporting agency.
Section 358 of the Patriot Act adds a new section to the Financial
Privacy Act that expands the branches of government that may demand
consumer reporting records from law enforcement agencies to include
intelligence agencies, such as the CIA.
If the CIA or other government agency certifies to a credit-reporting
company that it needs the information for an analysis of international
terrorism, then the company must surrender a "consumer report of a
consumer and all other information in a consumer's file."
The credit-reporting company may not tell the consumer that the
government obtained his or her file.
This new section also allows the agency that demanded financial
information to share that information with other agencies or departments.
The Patriot Act requires foreign nationals, such as students studying at
Brown University or elsewhere in the United States, to obtain an
identification number similar to a Social Security number before they
can open bank accounts.
Banks must, among other things, "conduct enhanced scrutiny" of any
account opened by a foreigner who is related to any "senior foreign
political figure."
Section 352 requires banks to maintain anti-money-laundering programs,
which must include an employee training program; a compliance officer;
and internal policies to identify suspect transactions.
Information on demand
Section 505 of the USA Patriot Act is under fire from the American Civil
Liberties Union.
The ACLU recently filed a suit against this provision of the act in the
Southern District of New York's federal court, alleging: "As a result of
the Patriot Act, the FBI may now . . . obtain sensitive information
about innocent individuals who have no connection to espionage or
terrorism."
To obtain this "sensitive information," the FBI would use an NSL, short
for a National Security Letter.
In 1986, Congress passed a law called the Electronic Communications
Privacy Act, which gave the FBI authority to write National Security
Letters demanding customer records from communications companies.
This demand required no court supervision, but the FBI could use this
power only if the subject of the NSL was suspected of being a foreign
spy.
In 1993, Congress noted that National Security Letters are "an
extraordinary device" because they are "exempt from the judicial
scrutiny normally required for compulsory processes."
With that caveat, Congress in 1993 expanded the potential targets of
National Security Letters from people suspected of espionage to include
people who communicated with suspected spies or terrorists.
Before the Patriot Act, federal agents could write an NSL to obtain
records in three categories: financial documents; credit reports; and
"electronic communications" -- such as telephone and Internet billing
records.
The demand had to come from a central agency office, and the agent
making the demand had to certify for internal review that the targeted
individual was communicating with or was an agent of a foreign power.
The Patriot Act amended the Electronic Communications Privacy Act to
drop the requirement that the NSL must apply to a specific person. To
obtain information about you under Section 505, an FBI agent just needs
to certify in-house that the information is "relevant" to a national
security investigation involving foreign or "clandestine" intelligence.
You do not have to be a suspect in the investigation, and no court
oversight is required for FBI field agents to issue such a demand.
The Patriot Act also dropped the requirement of issuing NSLs only from
FBI headquarters, making it possible for field agents across the United
States to demand your records from "electronic communication service
providers" such as phone companies and Internet service providers.
Such records would include, for example, your name, address, phone
number, screen names, merchandise bought or sold, credit card, bank
account number, and e-mail addresses.
A law that amends the Patriot Act, the Intelligence Authorization Act of
2004, expands the types of records that the FBI can demand with an NSL
to include documents kept by more than a dozen types of businesses,
including the U.S. Postal Service; casinos; car dealerships; pawn shops;
insurance companies; real-estate agents; commodities brokers, and
jewelry stores.
A company that receives a National Security Letter from the FBI must
turn over customer records; under a gag order in the law, the company
may not tell you that the FBI has sought your records.
The ACLU and an Internet service provider have filed a lawsuit alleging
that the Patriot Act's expansion of NSLs, and the gag order imposed on
companies served with an NSL, are unconstitutional.
Under the gag order, the Internet company cannot let it be known that
the FBI has served it an NSL. In public copies of the suit, the
company's name is blacked out.
Gerald M. Carbone may be reached at
gcarbone [at] projo.com or (401) 277-7434.
Tomorrow: Now the government may imprison any foreigner indefinitely and
without bail.
Editor's Note: The USA Patriot Act -- the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act -- has generated intense debate since it was
enacted almost three years ago. This series examines the implications of
some of the more controversial sections of the act's 342 pages.
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