Why Use a National Security Letter When You Have Post-It Notes?
Jacob Sullum | January 20, 2010
In a report (PDF) issued today, Justice Department Inspector General Glenn Fine shows that the FBI routinely broke the law for several years by demanding telephone records through informal methods that were not authorized by statute. The abuses, which involved thousands of records, are especially striking because it is not very hard for the FBI to obtain this information legally. The Electronic Communications Privacy Act (ECPA) allows the bureau to demand records from phone companies through a "national security letter" (NSL) signed by the director or an official he designates. Under FBI policy, any special agent in charge can sign an NSL, which simply states that the records sought are "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."
In 2003 FBI officials began dodging this minimal requirement by asking telecommunications carriers to suppy records without the legally required NSL "due to exigent cir stances" and promising to provide an NSL after the fact. These so-called exigent letters, which were often used when no emergency actually existed, were an extralegal contrivance that violated ECPA, bureau policy, and guidelines issued by the attorney general. The retroactive NSLs promised by the exigent letters often failed to appear because there was no authorized investigation to which they could be linked. To fix that problem, FBI officials resorted to another illegal procedure, issuing "blanket" NSLs tied to no particular investigation.
Even these pseudolegalities look downright upright next to the FBI's other informal methods of obtaining records, which included requests by email, phone, post-it note, and in-person oral communication as well as "sneak peeks," which were about as legitimate as they sound. The failure to follow the established NSL process is legally significant because ECPA prohibits telecom companies from disclosing customer records to the government except in specified cir stances. One of them is not when an FBI agent shows up at your office and says, "Mind if I take a look at that?"
The targets of the FBI's illegal record grabs are unknown, with one major exception. "Some of the most troubling improper requests for telephone records," the inspector general's report notes, "occurred in media leak cases, where the FBI sought and acquired reporters' telephone toll billing records and calling activity information without following federal regulation or obtaining the required Attorney General approval." In 2008 FBI Director Robert Mueller apologized for the bureau's improper snooping on foreign correspondents for The New York Times and The Washington Post.
Although the bureau's unauthorized data demands came to the attention of the FBI general counsel's office in 2004, they continued for two more years. The bureau did not stop using the illegal record-gathering methods until after Inspector General Fine issued his first report on the problem in March 2007. "We found widespread use of exigent letters and other informal requests for telephone records that did not comply with legal requirements or FBI policies," the new report says. "Our review also found that the FBI's initial attempts at corrective action were seriously deficient, ill-conceived, and poorly executed."
This episode speaks volumes about the willingness and ability of the FBI (or any law enforcement agency) to police itself. The natural tendency to cut corners for the sake of a noble goal, and to overlook such corner cutting when it's done by your colleagues, is one reason why it's a good idea to have someone outside the agency review its demands for information. Once that requirement is eliminated, it is not safe to assume that the remaining precautions will actually be followed, let alone be adequate to protect the privacy of innocent people.
The inspector general's report is here (PDF); go to page 270 for the conclusions and recommendations. The ACLU reacts. Previous Reason coverage of the issue here. Last week Brian Doherty asked if privacy can "survive the digital revolution."
Egads.. that actually sounds reasonable. What the f*** is such a statement doing here?
In Reason, you mean?
No, I mean in this forum.
I thought this was the Evil Conspiracy and Liberals are Bad forum.
It still is for the most part. The marketplace of ideas is messy.
But they're protecting America! Will you think of the children?!
/sarcasm
http://www.slate.com/blogs/future_te...itutional.htmlThey are used by the FBI to bypass courts and conduct secret surveillance. But now, in what could prove to be a major blow to the Department of Justice, a federal court has found that National Security Letters are uncons utional.
In a ruling released today, U.S. District Judge Susan Illston said that NSLs suffer from “significant cons utional defects” and violate the First Amendment because of the way they can be used to effectively gag companies that receive them. Illston has ordered the FBI to stop issuing NSLs and cease enforcing their gag provisions in all cases. However, the ruling has been stayed for 90 days, giving the government the chance to appeal to the 9th Circuit Court of Appeals because of the “cons utional and national security issues at stake.”
NSLs were created in the late 1970s to help the FBI obtain information about suspected foreign spies. But their use was expanded under the Patriot Act following 9/11, and they can now be used to order companies to provide data on Americans. Last week, Google disclosed that it had been forced to hand over data on thousands of its users in recent years after being served with NSLs—but it was able to divulge only vague information, rather than exact numbers. A company that receives a NSL can be forbidden from talking about it with anyone but a lawyer, or else potentially face years in prison.
The California case was brought in 2011 by civil rights group the Electronic Frontier Foundation, which is representing a telecom company that has not yet been named.
sameIt’s not the first time NSLs have been deemed uncons utional by a court. In 2004, New York entrepreneur Nicholas Merrill successfully fought a secret order he received to hand over information on customers of his hosting company. Merrill, who is currently planning to launch a new surveillance-proof Internet provider, won a district court case in 2004 that found provisions of the NSL he received were uncons utional because they violated both free speech guarantees and protections against unreasonable searches. He won a separate appeals court case in 2008 when parts of the gag order he was under were deemed to violate the First Amendment.
Between 2003 and 2006 nearly 200,000 NSLs were used by the FBI to obtain information about people. In 2007, a report by the Justice Department’s inspector general raised concerns about the use of the letters to “obtain vast quan ies of telephone numbers or other records with a single request.” The DOJ said in a statement today that it was reviewing the California ruling. It is likely that it will file an appeal. In the meantime, civil liberties and privacy groups will continue to celebrate what they are claiming as a landmark victory that will "help restore balance between liberty and security."
"they can be used to effectively gag companies that receive them."
hmm, and we know Corporate-Americans have 1st Amendment right$$$. What about gagging Human-Americans?
"New York entrepreneur Nicholas Merrill" is a hero.
https://www.techdirt.com/articles/20...der-seal.shtmlThrow the words "national security" around frequently enough and you might start to believe it actually means something. The EFF's battle against the government's use of National Security Letters (NSLs) is being fought mostly under seal (the EFF can't even reveal whom its clients are). To be sure, there is sensitive material being discussed, but the government's paranoia has extended so far as to seal do ents written by en ies with no access to classified or sensitive material. (h/t to Trevor Timm)
The Reporters Committee for the Freedom of the Press (RCFP) recently filed an amicus brief in this case on the EFF's behalf, arguing that the non-disclosure demands of NSLs are a form of prior restraint, something that is clearly uncons utional. It also notes the chilling effect this has had on journalism.
The information at issue is not just important for its own sake, but because, as recent reports have shown, fear of government surveillance has deterred confidential sources from speaking to journalists about a wide range of topics. The brief emphasizes that more knowledge about the NSL program can give sources and reporters confidence that their communications are confidential.The government's desire for secrecy extends even further than the NSLs' gag orders. This secrecy has now spilled over into what would normally be the public's domain.
The Electronic Frontier Foundation’s challenge involves three cases, all of which are under seal. The Reporters Committee was required to file its briefs under seal, but submitted a motion to the Ninth Circuit asking it to unseal its brief.Whatever the government's stated reasons for requiring the brief to be filed under seal, it's clearly wrong.
“The Court cannot cons utionally seal this brief,” the Reporters Committee wrote in the motion. “Amici have had no access to confidential materials in the case; the brief only includes information that is already public; and there are clear public policy reasons for requiring that the materials be open.”The government doesn't know when to quit. It's sealed brief requirement makes about as much sense as government agencies' initial reactions to the first few leaked NSA do ents -- instructing their employees to not look at publicly-available information because the do ents were supposedly still "classified." As if that designation made any sense under the cir stances.
This is the same sort of reasoning: NSLs are super-secret and therefore, anything related to these should be withheld from the public, even if the brief contains nothing more than publicly-available information.
blast from the past: http://www.wired.com/2007/06/librarians-desc/
CIA Sent FBI Agents After, Ended Career Of 19-Year Employee Over A FOIA Request For Historical Do ents
It wasn't even whistleblowing, although that too can destroy careers and lives. It was a FOIA request, made by someone who knew exactly which do ents he wanted released.
His CIA career included assignments in Africa, Afghanistan and Iraq, but the most perilous posting for Jeffrey Scudder turned out to be a two-year stint in a sleepy office that looks after the agency’s historical files.
It was there that Scudder discovered a stack of articles, hundreds of histories of long-dormant conflicts and operations that he concluded were still being stored in secret years after they should have been shared with the public.
To get them released, Scudder submitted a request under the Freedom of Information Act — a step that any citizen can take, but one that is highly unusual for a CIA employee. Four years later, the CIA has released some of those articles and withheld others. It also has forced Scudder out.
"Historical do ents of long-dormant conflicts and operations." Scudder dared to ask for these do ents, and the CIA cut him loose. It also sent another federal agency after him -- the FBI.
On Nov. 27, 2012, a stream of black cars pulled up in front of Scudder’s home in Ashburn, Va., at 6 a.m. FBI agents seized every computer in the house, including a laptop his daughter had brought home from college for Thanksgiving. They took cellphones, storage devices, DVDs, a Nintendo Game Boy and a journal kept by his wife, a physical therapist in the Loudoun County Schools.
To date, only his daughter has received her laptop back. Every other computer remains in the hands of the FBI, despite the fact that no charges were ever pressed and despite the fact that many of the do ents Scudder asked for have been released by the CIA in the interim. More from his request list are due to be released in the near future.
The CIA avails itself of a wide array of FOIA exemptions, but its reluctance to publish historical do ents is just baffling -- and is most likely a result of the agency's long-running adversarial relationship with transparency. It's been noted here before that the CIA has used the often-abused b(5) exemption to withhold do ents over five decades old (dealing with the Bay of Pigs invasion), claiming that the release of the "sensitive" do ents would "confuse the public."
Despite Scudder's efforts, the flow of historical CIA do ents will only decrease in the future. The office charged with declassifying historical do ents has been closed, deemed expendable by the agency in the face of budget cuts. This workload will be routed through the agency's FOIA office, creating even more incentive for the CIA to stonewall requests.
Scudder never did anything his superiors thought was wrong until after he attempted to free these historical do ents. Everything the agency never took issue with during his previous 18 years of employment -- like personal call infractions and the possession of photos (taken by Scudder in his position as "official CIA photographer") deemed "classified" -- was suddenly yet another reason to force him out. It's been clear for a long time that the government doesn't care much for whistleblowers. It also seems to have something against transparency, even concerning do ents of historical interest only.
Scudder did nothing criminal. He just did something the agency didn't like. And for that, he lost his job and clearance. So, it's not just whistleblowing that can get you destroyed. It's also holding the government to its own transparency standards -- something that isn't remotely criminal but is apparently completely unforgivable.
https://www.techdirt.com/articles/20...o ents.shtml
ECPA related:
https://www.techdirt.com/articles/20...nies-doj.shtmlThe ACLU is hoping to intervene in Microsoft's legal battle against the government, challenging gag orders attached to warrants and subpoenas issued under the Electronic Communications Privacy Act (ECPA). Microsoft sued the DOJ back in April, arguing for the right to notify customers that their communications and data have been handed over to the government.
Microsoft didn't have a problem with the government's gag orders in every case. It's just that the demand for secrecy accompanied more than half of the ~300 orders per month Microsoft receives. And nearly 70% of those gag orders arrived with no fixed end date.
The ACLU pe ioned the court to intervene in the case on its own behalf, citing its position as a Microsoft customer. The DOJ filed a motion to dismiss Microsoft's lawsuit, hoping the court will find Microsoft has no standing to challenge gag orders on its customers' behalf. The ACLU is trying to prevent this from happening until the DOJ addresses the issues raised by the ACLU's (attempted) intervention. In its opposition [PDF] to the DOJ's motion, the ACLU points out that the government's "no standing" argument pretty much nullifies any sort of due process for Microsoft customers (including the ACLU) who've been targeted by the DOJ's super-secret warrants, relegating them to a Kafka-esque legal purgatory.
The government attempts to insulate its refusal to provide notice from judicial review, arguing that neither Microsoft nor the ACLU has standing to raise these important cons utional questions. By the government’s logic, Microsoft does not ever have standing to defend its customers’ right to notice, and Microsoft’s customers, including the ACLU, may not defend their own right to notice until after they receive the primary relief they would seek—that is, notice. In the government’s view, the only plaintiffs who have standing to sue for notice are those who have already gotten it, and those deprived of notice forever have no ability to seek a remedy at all.
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