Administrative subpoenas, an innovative method of bypassing Fourth Amendment prohibitions against unreasonable search and seizure, first cropped up (at least publicly) in the draft of PATRIOT II that was exposed by the Center for Public Integrity in February 2003. Unlike a warrant, an administrative subpoena does not have to be approved by a judge. It is simply drawn up by an FBI agent in the course of an investigation and presented to a third party to force that person or business to hand over information about you—in other words, essentially a warrantless search.
Administrative subpoenas were one of the reasons that the public reaction to PATRIOT II was so swift and so severe—especially among the civil-libertarian denizens of the World Wide Web. The Justice Department quickly backpedaled; within weeks, PATRIOT II was dead.
From its ashes arose Orrin Hatch’s VICTORY Act, which ostensibly concerned drug-dealing rather than terrorism and homeland security. In drafts of VICTORY circulated in August 2003, administrative subpoenas were back with a vengeance. Now, they had a specific target—internet service providers—and a further ominous aspect: Any ISP presented with an administrative subpoena targeting one of its customers could be ordered not to inform that customer (or anyone else, for that matter) “of the existence of the subpoena . . . ” To remove any qualms that the ISP might have about complying with this draconian order, Section 504 of the VICTORY Act declared that the ISP “shall not be liable in any court of any State or the United States to any customer or other person for such production or for nondisclosure of that production to the customer . . . ” And nothing restricted the use of adminstrative subpoenas to obtaining information on suspected drug dealers. Again, the public outcry was intense, and VICTORY was dead within months.
Now, it appears, the Ashcroft Justice Department has learned from its mistakes. Unfortunately, the lesson it seems to have taken from the experience of PATRIOT II and VICTORY is not that it should not infringe further upon the constitutional rights of the American people but that it should not do so quite so publicly. And so, on December 13, 2003—a Saturday, not a usual day for government business—President Bush signed into law the Intelligence Authorization Act for Fiscal Year 2004, which included a vastly expanded version of the administrative subpoena, now rebranded a “National Security Letter” (NSL). Because of its secretive nature, the intelligence act received no public—and very little congressional—scrutiny. Even so, it appears the Bush administration was taking no chances: The NSL provision “was written into the bill at the 11th hour over the objections of members of the Senate Judiciary Committee, which would normally have jurisdiction over the FBI,” says Rep. Ron Paul (R-TX).
The NSL provision allows an FBI agent to demand the release of any information that he deems relevant to a national-security investigation from any “financial institution”—which includes not only banks but insurance companies, brokerage houses, real-estate firms, travel agencies, car dealerships, jewelry stores, casinos, and (perhaps most ominously) the U.S. Postal Service. As in the drafts of VICTORY, the business is forbidden to notify its customer.
December 13, by the way, was the day that the U.S. military captured Saddam Hussein, an event which kept all mention of the Intelligence Authorization Act and NSL’s out of the major media. Do you feel any safer now?