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Proposed Changes to USA Patriot Act and Implications for
Grantmakers (July 13, 2005)
The Patriot Act is up for reauthorization or revision and certain
provisions of a recent draft would affect grantmakers. While we
emphasize that the bill is in a very preliminary stage
of its journey through Congress, and while Senator Kennedy who sits
on the Judiciary Committee is likely to be a voice of reason on
the bill, we wanted you to be aware of this legislative development.
Note to AGM Members and Partners: The following information
was developed by our peer organization NYRAG (The New York Regional
Association of Grantmakers). We thank them for sharing this information.
Since the September 11th terrorist attacks, foundations and corporations,
particularly those funding internationally, have had to engage in
additional due diligence with regard to their grantmaking. In accordance
with Executive Order 13224, the USA Patriot Act and other related
laws, including voluntary guidelines issued by the Treasury Department,
grantmakers regularly check the names of their prospective grantees
against various watch lists produced by the government, and document
their compliance to protect themselves from possible criminal and
civil prosecution.
CHANGES AHEAD?
Provisions of the Patriot Act are currently under consideration
for reauthorization or revision in Congress. The bill that would
reauthorize as well as expand the government’s investigatory
powers is called the Patriot Reauthorization Act (PAREA). This bill
passed through the Senate Intelligence Committee on June 7th by
a vote of 11 to 4 and now moves on for consideration by the Senate
Judiciary Committee.
If certain measures of the Patriot Act are reauthorized and revised
before they expire at the end of 2005, the FBI will be granted more
expansive investigative powers. This development could have important
consequences for the work of grantmakers.
Although not targeted specifically at grantmakers, two provisions
under consideration are particularly relevant:
- Section 215 of the Patriot Act currently (and if reauthorized)
allows the FBI, with permission from a judge, to request any tangible
item from a person or organization as long as that item is relevant
to an authorized investigation. If the FBI believes that a grantmaker
has materials on an organization that are pertinent to a federal
investigation, the donor institution would be forced to turn over
its documentation. These documents could run the gamut from confidential
internal files to information about grantees.
- With the addition of “administrative subpoena” power
in a proposed Section 213 of PAREA, the FBI itself would be allowed
to issue subpoenas. This power would permit the FBI to act more
quickly in its investigation of terrorist activities. Used in
conjunction with Section 215, administrative subpoenas will allow
the FBI to obtain any records it deems relevant to its investigations,
which means that any grantmaking organization could be forced
to turn over sensitive and confidential information. Privacy advocates
believe that giving this additional power to the FBI is unnecessary
and dangerous. Aside from the issues of privacy and confidentiality,
compliance could be arduous for grantmakers of all sizes.
ARGUMENTS, OPINIONS, AND RESOURCES
Below are resources to help grantmakers inform themselves about
these issues.
Privacy advocates have made several arguments against PAREA, two
of which are available below:
There are also those calling for the passage of PAREA and the
granting of wider subpoena powers to the FBI. Here are examples
of this viewpoint:
You may also visit the Senate Intelligence Committee website for
testimony regarding the Patriot Act at http://intelligence.senate.gov/hr109.aspx.
Or, visit the ACLU website for their FAQ on Section 215 at http://www.aclu.org/Privacy/Privacy.cfm?ID=11054&c=130
or their collection of resources on the Patriot Act at http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=12126&c=207.
For further information about compliance with anti-terrorism measures,
see the Council on Foundations’ Handbook on Counter-Terrorism
Measures: What U.S. Nonprofits and Grantmakers Need to Know, available
at http://www.cof.org/files/Documents/Publications/2004/CounterTerrorismHandbook.pdf,
and Principles of International Charity, available at http://www.cof.org/files/Documents/International_Programs/2005Publications/Principles_Final.pdf
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