Credit Reports and National Security

by Dave Banisar

Credit Reports and National Security

Dave Banisar <[email protected]>

Last week, the Senate Intelligence Committee approved a provision that allows for FBI access to credit reports using only a letter instead of a judical warrant in cases that they say involved national security. There is concern that this will be subject to abuse and that the necessity has not been proven. Several privacy and consumer groups sent this letter opposing the provision.

I was unable to easily find the actual text but will get it after I come back from vacation.

Dave Banisar CPSR Washington Office

July 12, 1993

The Honorable Dennis Deconcini Chairman Senate Select Committee on Intelligence United States Senate SH-211 Hart Senate Office Building Washington, DC 20510-6475

Dear Chairman DeConcini;

We are writing to voice our strong opposition to the Administration's legislative proposal to amend the Fair Credit Reporting Act (FCRA) to allow the Federal Bureau of Investigation(FBI) to obtain consumer credit reports in foreign counterintelligence cases.

The FBI seeks a national security letter exemption to the FCRA to obtain personal information from consumer reporting agencies without a subpoena or court order. A national security letter gives the FBI the authority to obtain records without judicial approval and without providing notice to the individual that his or her records have been obtained by the Bureau. Similar FBI proposals were rejected in previous years after Congressional leaders expressed concern over the civil liberties issues raised.

Although the current draft proposal is more comprehensive than those circulated in previous years, the changes and additions do not alter significantly the central character of the proposal. The Administration's 1993 proposal includes explicit limits to'dissemination of obtained information within the goverrment, penalties for violations including punitive damages, and reporting requirements. These provisions are positive changes from the legislation put forward in previous years, but they do not save the proposal from its intrinsic flaws.

Therefore, the reasons for our fundamental opposition to the current proposal remain the same: 1) the FBI has not demonstrated a compelling need for access to consumer credit reports; and 2) legislation that implicates civil liberties should be addressed separately and not as part of the authorization process.

There are only two instances in which Congress has authorized the FBI, in counterintelligence investigations, to obtain information about individuals pursuant to a national security letter but without a subpoena, search warrant or court order. First, the Electronic Communications Privacy Act (ECPA) of 1986 included a provision requiring common carriers to disclose subscriber information and long distance toll records to the FBI in response to a national security letter. Second, congress included in the 1987 Intelligence Authorization Act an amendment to the Right to Financial Privacy Act (RFPA) that requires banks to provide customer records to the FBI in response to a similar letter. In that case, the FBI presented to Congress its case for obtaining financial records in foreign counter- intelligence cases and the difficulty of obtaining those records without a court order.

In both instances when congress has previously authorized the national security letter, Congress recognized that the procedure departs dramatically from the procedure necessary to obtain a court order.

The FBI's current proposal seeks similar access to individuals' credit records held by consumer reporting companies. The FBI has yet to adequately justify its need to add such highly personal, sensitive information to the narrow category of records subject to the national security letter exemption. The Bureau claims obtaining credit reports will allow it to more easily determine where a subject of an investigation banks -- information the FBI claims will help them effectuate their ability to access bank records under the RFPA. We opposed the national security letter exemption in the RFPA and do not endorse the FBI's slippery slope approach to ensuring that they can more easily obtain financial information in foreign counterintelligence cases. This information can be and is routinely gained without credit reports. We do not believe convenience is a sufficient justification for this significant exception to the law.

The FBI further argues that obtaining banking information through a credit report is preferred because it is actually less intrusive than those investigative methods that would otherwise be used. While we too are frustrated that other information- gathering techniques are frequently too intrusive, our objections to the other techniques do not lead us to endorse yet another technique that is also intrusive and that weakens existing privacy law.

Finally, we object to using the authorization process as the vehicle for pursuing this change. The national security latter exemption, because it diminishes the due process and privacy protections for individuals, must be given the most careful consideration. The FBI's proposal should be introduced as separate legislation on which public hearings can be held. only in this way can the Committee test thoroughly the FBI's case for the exemption and hear from witnesses who object to the change.

We urge you to reject the FBI's proposal in its current form. We are available to work with you on this issue.

Sincerely,

Janiori Goldman Privacy and Technology Project American civil Liberties Union

Michelle Meier Consumers Union

Evan Hendricks U.S. Privacy Council

Marc Rotenberg Computer Professionals for Social Responsibility

cc: Members, Senate Select Committee on Intelligence

The Honorable George J. Mitchell Senate Majority Leader

The Honorable Donald W. Riegle, Jr., Chairman Senate Committee on Banking, Housing and Urban Affairs

The Honorable Patrick J. Leahy, Chairman Subcommittee on Technology and the Law