COPYCENSE

Commentary by K. Matthew Dames, executive editor.

Amid preliminary reports of “Green Friday” holiday sales, Monday’s Wall Street Journal has written an interesting article about an unlikely coalition fighting the renewal of the USA PATRIOT Act.

Joining the American Civil Liberties Union, organizations such as the U.S. Chamber of Commerce, the National Association of Manufacturers, the National Association of Realtors and the Financial Services Roundtable are demanding changes in the antiterror law’s rules on government access to confidential business records. Corporate objections played a major role in blocking final legislative action on a new [PATRIOT] Act before the Thanksgiving break. Now, with pressure mounting to get the law passed by year end, business lobbyists say they see signs that key lawmakers are open to altering some provisions, offering companies clearer legal protections and avenues for appeal.

Big Business’ aggressive push for PATRIOT Act changes comes after it backed away from a similar effort earlier this year was scuttled, as some corporations feared a public relations backlash. “Talking in the abstract about secret records searches does not necessarily generate positive publicity,” according to a CIO Central article that was published during the summer. “[S]ome businesses fear that challenging the law would make them appear ‘soft on terror,’ and companies that do business with the government are sometimes reluctant to challenge their client on policy matters.”

But that was then, and this is now. President Bush is much weaker politically than he ever has been, even during a period as recent as last summer. A continuing criminal investigation into the blown cover of an undercover CIA operative, the poor management of Hurricane Katrina, the cost of the Katrina recovery effort, the bungled Harriet Miers Supreme Court nomination, and controversy over intelligence that supported the Iraq invasion all have rolled into a perfect storm of political trouble that Big Business is ready, willing, and able to exploit for its own gain.

According to the Journal, Big Business’ renewed opposition to the PATRIOT Act began last month.

[In] October, business groups jumped into the debate and began coordinating strategies and communicating with the ACLU, according to both [Susan] Hackett [senior vice president and general counsel for the Association of Corporate Counsel] and Lisa Graves of the ACLU. “We were very, very surprised by the business community’s position and some of their concerns so late in the process,” said [a] Justice Department spokesman. It was business intervention, Ms. Hackett said, that has changed the course of the debate. … Justice officials have responded by trying to assure business groups that the administration wouldn’t abuse the powers.

In between chuckles, I have to note two things. First, it is typical of Big Business to take full credit for changes it had a small role in creating. The ACLU and the library community have been working on amendments to the USA PATRIOT Act since its passage into law four years ago. But now that Big Business has decided that cash is more important than cowardice, it is eager to portray itself as the key player on this issue. To be fair, though, the ACLU did not have the political or commercial power to get the Act changed in any substantive way. The Bush administration only would have listened to two communities on this issue: the evangelical, ultra conservative right (and they’re concentrating on getting Samuel Alito confirmed as Sandra Day O’Connor’s successor), and Big Business.

And this brings me to my second point. I smirk at the administration being forced into PATRIOT Act amendments by one of its own. (Hence, the administration’s “surprise” at “the business community’s position.”) But the president surely must understand by now how the deal goes down. This is business; it’s never personal.

Robert Block. “Bush Antiterror Plans Irk Big Business.” The Wall Street Journal. Nov. 28, 2005. Page A4.

See also:

Dave Beal. Businesses Challenge Patriot Act. TwinCities.com. Nov. 16, 2005.

Bloomberg.com. U.S. Chamber, Civil Liberties Union Ally to Limit Patriot Act. Nov. 14, 2005.

Richard S. Dunham. The Patriot Act: Business Balks. BusinessWeek Online. Nov. 10, 2005.

Caron Carlson. Patriot Act Reform Outreach Scuttled. CIO Central. July 22, 2005.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.