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'Privacy Villian of the Week'

By Jeralyn, Section Civil Liberties
Posted on Sun Aug 17, 2003 at 12:54:51 PM EST
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National Consumer Coalition’s Privacy Group has a website section Heroes and Villians that this week names Attorney General John Ashcroft as the " Privacy Villian of the Week" for his upcoming tour garnering support for the Patriot and Victory Acts. We now have a draft of the Victory Act and can confirm that it contains some abominable provisions that will further eviscerate the privacy interests of all Americans. Here are a few, as described by Heroes and Villians:

The full name of the VICTORY Act is the "Vital Interdiction of Criminal Terrorist Organizations Act of 2003," and like the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorists" (USA PATRIOT) Act, it is a grab bag of enhanced police-state powers only tangentially related to its bombastic and acronymic title. It is Title V of the VICTORY Act that has the most direct effects on consumer privacy.

Section 503 grants the Attorney General the power to issue "administrative subpoenas" in investigations related to the extremely broad definition of "terrorism" instituted in the USA PATRIOT Act. (An "administrative subpoena" is like a search warrant automatically issued by the Clerk of Court, except without the bother of having a judge sign off on it.) This investigatory power of the DoJ includes the ability to subpoena consumer data from a business. And if so ordered by the Court, the business would not be able to tell anyone about the subpoena for 90 days. Infinite 90-day extensions of this time limit are also available.

This power would be very analogous to the USA PATRIOT Act search warrants issued by the secret FISA court. The House of Representatives has voted to defund enforcement of such warrants on bookstores and libraries.

Then there is Section 504:

Section 504 of the VICTORY Act basically lays out the same power for "fugitive" investigations with 30-day instead of 90-day intervals of secrecy orders. Section 504 specifically mentions subpoenaing consumer records from telecommunication companies, Internet service providers, and financial service firms such as banks.

And both sections grant civil immunity to businesses and their employees, who would be immune from civil liability for cooperating with the subpoena without challenging it, even if the administrative subpoena is found unconstitutional. This would override contractual agreements between consumers and businesses such as the business' privacy policy. So if a company's privacy policy is to resist potentially illegal or unconstitutional subpoenas in order to protect their customers' privacy, that company can ignore that policy and still be immune from civil litigation by the customer.

One more objectionable provision is Section 505:

Section 505 would change the rules by giving the Justice Department broad "judge-shopping" in getting warrants for wiretaps, allowing for petitions not just to judges but to those pseudo-judges known as "magistrates."

We've added Heroes and Villians to our blogroll under "Government Watchers" and will check in with them frequently.

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