A recently released document revealed that it is impossible for any business to challenge secret searches of customer records by federal agents because only government lawyers are allowed into the court that would hear appeals! This information came from the ACLU which obtained the document in a Freedom of Information Act lawsuit. The document lays out the rules of the secretive Federal Intelligence Surveillance Court, first established in 1978 and still meeting today in the basement of the Justice Department. The rules that govern the court do not include procedures for outside litigants to argue before the judges, file memorandums, or otherwise influence a case. Again, as stated earlier, only government lawyers can appear before the court.

But this is the court overseeing implementation of Section 215 of the USA PATRIOT Act. This section allows the FBI to search business records during investigations that could be loosely classified as “counter-terrorism” or “counterintelligence.” And businesses searched under such an order cannot reveal the existence of the search!

Most of the media coverage around Section 215 searches has revolved around libraries and bookstores, but the truth is the provision applies to any kind of business.

This revelation undermines the Justice Department contentions in recent court cases that, “If and when a Section 215 order is served on these plaintiffs, they will have ample opportunity to challenge it before the court that issues the order (i.e.,FISC).”

What more can be said? Businesses are being searched by federal agents, and face criminal penalties should they tell their consumers that they (the business and consumers) being watched. And if searches are made under false pretext, who do they appeal to?

This situation undermines consumer confidence in the privacy of his transactions and highlights that the greatest threats to consumer privacy come from the public, not private, sector.

If you would like more information regarding asset protection, trusts, family limited partnerships or the subject of this article please call or email our office.