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FBI - Seize Records Without Judicial Approval

The FBI has asked Congress to allow it sweeping new powers to seize business or private records without securing approval from a judge. The agency's purpose for seizing such records, whose information ranges from medical to book purchases, is to investigate terrorism.

Speaking recently to the U.S. Senate Intelligence Committee, a general counsel for the FBI stated that the agency needed the power to issue what are known as administrative subpoenas in order to quickly get information about possible terrorist plots and the activities of foreign agents.

But, civil liberties groups are complaining that such subpoenas, which would cover medical, tax, gun-purchase, book purchase, travel and other records, would be kept secret and give the FBI too much power. There is also the worry about administrative subpoenas infringing on privacy and free speech.

"This type of subpoena authority would allow investigators to obtain relevant information quickly in terrorism investigations, where time is often of the essence," the general counsel testified.

The subject of administrative subpoenas dominated the hearing, which was called to discuss renewing some of the clauses in the USA PATRIOTAct that are due to expire at the end of this year.

The USA PATRIOT act was passed shortly after the Sept. 11, 2001, attacks. However, the original law contained no provisions regarding using the power of administrative subpoenas The proposed new powers, long been sought by the FBI, were added by Republican lawmakers to the new draft of the USA PATRIOT Act.

The committee chairman, Kansas Sen. Pat Roberts, noted that other government agencies already had such subpoena power to investigate cases involving child pornography, drugs and medical malpractice. He said it made little sense in denying those same powers to the FBI to investigate terrorism or keep track of foreign intelligence agents.

But the opponents of using such subpoena powers say that these other investigations culminate in a public trial, whereas terrorism probes would probably remain secret and suspects could be arrested, deported or handed over to other countries without any public action.

Over the objections of some members of the committee, Roberts intends to hold a closed meeting later this week to move the legislation forward out of his committee. However, the provision will face a long road before becoming law. The Senate Judiciary Committee has jurisdiction over the bill, while the House of Representatives are drawing up its own legislation.

Democrat committee members have expressed concerns and insisted that the FBI counsel cite examples of cases where lack of such powers hampered an investigation.

"I am not aware of any time in which Congress has given directly to the FBI subpoena authority. That doesn't make it right or wrong. It just needs to be thought about," said West Virginia Democrat Jay Rockefeller.

The FBI counsel said she could not cite a case where a bomb had exploded because the FBI lacked this power. But she added that it did not mean that a bomb could not explode tomorrow.

The counsel did give a theoretical example of a case where the FBI suspected that a terrorist was about to do something, but had no information of the terrorists wherabouts. In such a case, the counsel said, it would need to subpoena EZ-pass records. These recors would show where and when he had driven through toll booths in the eastern United States.

Under the proposed legislation, those who are served with subpoenas have the right to challenge them in court. But civil liberties groups are saying that few people would do so, and it would be doubtful that the person under investigation would be aware that the FBI sought his personal records.

For example, should the FBI demand an individual's medical records from his doctor, the doctor could challenge the order, but the individual could not.

"Ordinary citizens are storing information not in their homes or even on portable devices but on networks, under the control of service providers who can be served with compulsory process and never have to tell the subscribers that their privacy has been invaded," said James Dempsey of the Center for Democracy, one of several groups opposing the provision.