A new bill that borrows language from the PATRIOT Act promises to nab human traffickers using the same surveillance techniques that law introduced to catch terrorists and their associates. We all know how that went: The PATRIOT Act's spying provisions—and other "War on Terror"–era crime measures—proved attractive to law enforcement far beyond their intended scope. Now, legislators like Rep. Ann Wagner (R–Mo.) hope we won't notice if they feed us the same liberty-poisoning bologna with a new excuse.
It's "a disguised effort to expand the #PatriotAct," tweeted Rep. Justin Amash (R–Mich.) on Saturday. "GOP leaders put 'Fight Human Trafficking' in the title to conceal the bill's true purpose: to give the government more power to unconstitutionally spy on law-abiding Americans without a warrant."
Wagner's bill (H.R. 6729)—the deceptively named the "Empowering Financial Institutions to Fight Human Trafficking Act" of 2018—is the latest in a long line of assaults on civil liberties disguised as attacks on the biggest crime panic of the decade, sex trafficking. Wagner alone brought us the SAVE Act in 2015 and FOSTA in 2018, both of which take aim at online anonymity, web publishing, social media, sex workers, and free speech under the guise of saving children from "modern slavery."
Specifically, H.R. 6729 would allow financial institutions, federal regulatory bodies, nonprofit organizations, and law enforcement to share customer bank records between them without running afoul of rules regarding consumer privacy and without opening themselves up to lawsuits. Ostensibly, this would be done "in order to better identify and report potential human trafficking or money laundering activities."
But these entities need not demonstrate that the "sharing was made on a good faith basis," according to the current text of the bill.
Cops working specific cases or pursing specific suspects can already obtain their financial records by going through court channels and using the subpoena process. What they want here is access to wide swaths of (subsequently shareable) financial data on customers accused of no crimes and facing no charges. And they want this data to be served up proactively by bank staffers, who are supposed to somehow pick bad actors out from the rest of us based on their financial transactions, and by nonprofits, who would be empowered to share information gleaned through the provision of social services.
Wagner's bill would cover "matters specifically related to those benefiting directly or indirectly from human trafficking, the means by which human traffickers transfer funds within the United States and around the world, and the extent to which financial institutions, including depository institutions, asset managers, and insurers in the United States, are unwittingly involved in such matters or transfers and the extent to which such entities are at risk as a result." It would also cover information related to "means of facilitating the identification of accounts and transactions involving human traffickers and facilitating the exchange of information concerning such accounts and transactions between nonprofit organizations, financial institutions, regulatory authorities, and law enforcement agencies."
The language echoes Section 314 of the PATRIOT Act, which covers "matters specifically related to the finances of terrorist groups, the means by which terrorist groups transfer funds around the world and within the United States, including through the use of charitable organizations, nonprofit organizations, and nongovernmental organizations, and the extent to which financial institutions in the United States are unwittingly involved in such finances and the extent to which such institutions are at risk as a result." Section 314 also covers information on "means of facilitating the identification of accounts and transactions involving terrorist groups and facilitating the exchange of information concerning such accounts and transactions between financial institutions and law enforcement organizations."
Like other PATRIOT Act provisions—most notably, Section 215, which the Department of Justice interpreted to allow metadata collection on millions of innocent Americans—Section 314 turned out worse in effect than in theory. The provision was pushed as a way to let financial institutions legally share information with each other and authorities but was used by authorities to demand all sorts of information from banks. It also led banks to start dropping people with Middle Eastern surnames.
"While other parts of the PATRIOT Act initially drew fire, Section 314 glided by, largely overlooked by everyone except the bankers," Jeff A. Taylor wrote here at Reason in 2004. But Section 314 turned out to be a "ticking time-bomb for anyone a buttoned-down banker might consider suspicious." (For more on the perils and pointlessness of Section 314, see "Show Us Your Money: The USA PATRIOT Act lets the feds spy on your finances. But does it help catch terrorists?," from Reason's November 2003 issue.)
It would go on to be used "to hunt down 'terrorists' at Vegas strip clubs," and generally serve as an all-purpose way for the feds to surveill random consumer financial transactions.
A 2016 bill to directly expand Section 314 of the Patriot Act was narrowly defeated in the U.S. House of Representatives.
Introduced on September 6, Wagner's new bill has already received a first vote by the House Committee on Financial Services (44 for, five against) and five co-sponsors, including two Democrats (Reps. Carolyn Maloney of New York of Kyrsten Sinema of Arizona) and three Republicans (Reps. Mia Love of Utah, Mimi Walters of California, and Claudia Tenney of New York).
A full House vote is scheduled for Wednesday.
Wagner has been instrumental in spreading false narratives about the website Backpage.com and its founders, who currently face federal money laundering charges. Despite more than half a decade of investigation, authorities have been unable to find evidence that Backpage knowingly condoned or facilitated forced or underage prostitution. They are still trying to gather evidence for their money laundering case against Backpage's executives, who were arrested in April but (at the government's insistence) must wait until 2020 for a trial.
Allowing—or demanding—information sharing between banks, cops, and nonprofits that work with sex workers could go a long way toward not just shuttering individual sex worker bank accounts but facilitating money-laundering charges against any website that allows "escort" ads or otherwise enables communication that connects sex workers and clients.
CORRECTION: This post originally misidentified Wagner as a Democrat; she is a Republican.
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