The Saturday before Saddam Hussein was captured, President Bush signed into law the Intelligence Authorization Act of Fiscal Year 2004. Tucked away in this legislation is language allowing the FBI to collect any citizen’s financial information without judicial review or meaningful Congressional oversight. Pour yourself a cup of coffee and read Section 374 of the law for details.
This means that an FBI agent can draft a “national security letter” (NSL) and, as if by magic, get “financial information,” which is newly defined to include your transactions with stock brokers, travel agents, jewelry stores, the U.S. Post Office, casinos, and real estate agents, and car dealerships.
The support for this provision was predicated on an urgent need for the FBI to get this information. This is difficult to understand, since the FBI already has the power to get this information under Section 215 of the Patriot Act. Strangely, the FBI claims that it has never used the this power. So what’s going on here? Why give them this power when they’re not using the power they already have?
The answer is that the FBI doesn’t want to use Section 215 of the Patriot Act. The FBI is finding these NSLs much more useful. NSLs don’t require the approval of the FISA court and the minimal oversight that provides. NSLs are practically immune from Congressional oversight. They’re also completely opaque to the public: for example, EPIC filed an FOIA request for the list of NSLs that have been issued, and here’s what they got: a six page list, entirely redacted with black marker.
Many news services and web sites have characterized this surreptitious change as an expansion of the FBI’s power — which is a terrible mistake. The FBI has been able to get these records all along. What they wanted, instead, is to exercise this power without any oversight, criticism, scrutiny or transparency. Essentially: Congress willingly surrendered its resposibility to hold the FBI accountable.
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