Print 27 comment(s) - last by AMERICA HAS SE.. on Mar 26 at 7:26 PM

  (Source: Paramount Vantage)
DOJ: FBI abused "National Security Letters"; FBI: lack of accountability helps fight terrorists

Many know that the USA PATRIOT (Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism) Act authorizes federal organizations to without warrant request information on U.S. citizens (a search) who may be corresponding with a hostile foreign national.  While the warrantless surveillance is much discussed and controversial (many believe it is unconstitutional), precisely how that monitoring occurs is much less talked about.

I. The National Security Letter

The instrument used is the National Security Letter (NSL).

The NSL is not a new creation -- this secret government investigative tool cropped up in 1978 (the earliest known occurrence) -- six years before the titular date in George Orwell's cautionary ficitional masterpiece 1984.  NSLs offer a way for the U.S. Federal Bureau of Investigations to circumvent privacy laws that allowed corporations to resist intrusions of their customers privacy.  The NSL constitutes a warrantless search.  

While some are used on foreign nations who do not enjoy Constitutional protections, tens, if not hundreds of thousands of NSLs are used on American citizens seemingly in direct violation of the Fourth Amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

But in the years that followed, this controversial method of demanding citizens' private data did not disappear or get thrown out by the court system.  Rather it flourished in the shadows.  By 2000 the FBI issued 8,500 NSLs.  But that was only a hint of the volume to come.

After 9/11 the passage of the PATRIOT (or commonly referred to as Patriot) Act, the FBI was authorized to use NSLs to collect information from phone service providers, ISPs, and credit bureaus.  The new law cut down much of the red tape that had complicated the use of NSLs.

The PATRIOT Act allowed FBI agents to send NSLs without direct supervision.  Usage soared by half an order of magnitude. [Image Source: Public Domain Images]

Suddenly, it had become easier than ever for FBI agents to spy on people.  In fact, under the Patriot Act's provisions, agents no longer had to seek a sign-off from the Special Agent in charge of their office.  They could self-issue the letters, as long as they noted in their case file that they thought it was "relevant" to the investigation.  Those files -- in some cases -- were never read in full, and the NSLs themselves were redacted from the public eyes.

With this laissez-faire atmosphere of ubiquitous surveillance filings, NSL usage spiked to a peak of 56,507 reported orders in 2004 -- two decades after 1984.  Some of these orders targeted foreign nationals living or doing business in the U.S.  But nearly half of them were employed in warrantless surveillance on American citizens.

II. Gov't: NSLs -- Often Used; Often Abused

But all was good, as long as they were going after the "terrorists", right?

Unfortunately, that was not the case.  You see, when there is a system in which abuse can occur, it is typically a system in which abuse does occur.

And abuses did occur.
NSLs by Year
A government audit found that agents were using their unsupervised NSL powers in abusive, outright illegal ways.  Close to 300,000 NSLs have been issued during the Bush and Obama administrations, targetting tends of thousands of U.S. citizens [Image Source: DoJ Reports]

According to a 2007 audit [PDF] by the Justice Department Inspector General, the FBI was found to have had sweeping and flagrant abuses littered among the 200,000 letters issued between 2003 and 2006.  The agency overstepped its authority, and in some cases agents misused their unchecked powers of domestic spying.

The agency underreported (essentially lied about) the number of NSL issued, in its reports to Congress.  And while there was supposedly a set of guidelines that determined when a NSL could reasonably be used, the Inspector General found agents to be evading these rules.  In some cases the filings were so inappropriate that the Inspector General characterized them as "illegal".  In other words, some filings likely targeted individuals who had committed no crime and were not secretly communicating with foreign criminals.

Of course precised details of these abuses were never published as the first rule of NSLs is that you don't talk about NSLs.  The second rule of NSLs?  You don't talk about NSLs.  They come with a built-in gag order that prevents public disclosure.

Still, even without the details, the impression of impropriety was an embarassment to the Bureau.  The audit brought promises of change and a crackdown on abuse from the FBI.  NSL declined dramatically to less than half of the 2004 levels.  However, numbers have once again begun to creep back up, with 24,287 letters (pertaining to 14,000 U.S. residents) issued in 2010 (the data for 2011 has not yet been made publicly available).

III. Courts Threaten Future of Unregulate Surveillance With Judicial Oversight

The issue of NSL has slowly been challenged in the post-PATRIOT Act era, after the fervent support for the security legislation died down.

Thanks to a couple of defiant firms the shroud of secrecy over the NSLs has been chipped away.  In 2007 the FBI sent a NSL to the Internet Archive demanding a full list of their users and records.  The Internet Archive refused, retaining the support of the Electronic Frontier Foundation (EFF), a digital advocacy group.  The EFF fought hard and not only managed to dissolve the NSL, it also won legal permission to unseal the court letter, giving many in the public and media their first practical knowledge of this sweeping spying mechanism.

A second key case was filed in 2004, but was not unsealed until 2010, after years of court battles.  That case saw the American Civil Liberties Union (ACLU) and Nicholas Merrill (or John Doe as he is refered to in the original case), owner of small internet service provider Calyx Internet Access, challenged an NSL on Constitutional grounds.

In its case the ACLU that the Constitution protected user internet service records.  In an interview with Wired, Mr. Merrill states, "Internet users do not give up their privacy rights when they log on, and the FBI should not have the power to secretly demand that ISPs turn over constitutionally protected information about their users without a court order."

Ideas are bulletproof
V to corrupt police: "Did you think to kill me?  There's no flesh and blood within this cloak to kill.  There's only an idea.  Ideas are bulletproof." [Image Source: Warner Brothers]

In 2004, in U.S. District Court for the Southern District of New York a judge ruled that the Patriot Act's demand that the plaintiff quickly file a secret lawsuit in response to a NSL were unconstitutional.  The ruling led Congress to craft new rules [PDF], under which an NSL recipient had 10 days to challenge the ruling by fax.

Then in Dec. 2008, at New York City's Second Circuit Court of Appeals, a judge ruled that the provisions of the PATRIOT Act that absolved the FBI from having to justify gag orders in court were unconstitutional, as they eliminated judicial review, a key check and balance.

Back in court at the U.S. District Court for the Southern District of New York, the FBI thought they might be able to find an easy route by presenting sealed evidence to the judge.  As the ACLU and Mr. Merrill's lawyers could not access the evidence, they could not effectively refute it.

Unfortunately for the FBI, the judge ruled that this was invalid and that the FBI needed to provide -- at a minimum -- an unclassified summary for the defendant.  In other words, the FBI had to follow due process -- a novel suggestion, surely.

After a judge found parts more sections of the amended PATRIOT Act unconstitutional, Mr. Merrill agreed to settle, but only under the condition that there was a partial-lifting [press release] of the gag order, allowing him to reveal his identity, in effect notifying his clients of the compromise of trust.  In exchange for that, he was forbidden from mention what information the FBI was seeking.  However, that information has somehow leaked out to Wired -- reportedly the FBI was seeking a broad scoop of 16 different types of data, including emails and billing records.

IV. New John Doe Fights Back Against NSL in Wake of Merrill

Now a new company has stepped up to the plate, with the latest court challenge.  In a response faxed on Mar. 9, 2012 a service provider "with employees dispersed across the world" was ordered [PDF] by an unnamed FBI agent to hand over records of one or more 'electronic communications transaction[s]" from one or more targets.  

The FBI complained that revealing the full information request would compromise an ongoing investigation regarding "international terrorism or clandestine intelligence activities."

Gag order
The FBI says gag orders and lack of accountability are necessary to "protect" American citizens from the shadowy spectre of terrorism. [Image Source: How to be a Dad]

On Tuesday a court agreed to seal the records (except for the redacted NSL) and issued another unknown sealed order.  But the case is likely far from over.  As the Merrill case illustrated, advocacy groups like the EFF and ACLU have the resources to help companies fully challenge these requests in a financially safe manner.  And even if the district courts won't listen, justices at the Appeals court level might.

As this new battle brews and as the public contemplates whether to reelect a president who backed domestic spying a massive scale, the issue will likely remain fixed in the public's eye, much to the chagrin of the FBI -- who would surely prefer to conduct their activities in secret, without bothersome encumberances like accountability.  

That said, while Bush and Obama have been the figureheads who have endured much of the brunt of NSL-criticism, both of America's ruling parties have worked in unison to fight the justice department legislatively to preserver wireless surveillance, so it is unlikely that President Obama's Republican rivals would change course if they had the good fortune to be elected.

To date federal judges have ruled certain kinds of NSL use to be in violation of citizens' First, Fourth, and Fifth Amendment rights.  Yet use on thousands of American citizens continues, at least as of published 2010 reports.

And bear in mind, NSLs are only one of many powers at agents disposal -- including warrantless wiretaps and cell phone data grabs by State Police.

Groups working to fight these measures include the EFF, the ACLU, and the Calyx Institute -- an advocacy founded by Mr. Merrill.  All of these organizations encourage U.S. citizens to donate their time and money, if you feel the cause of stopping warrantless monitoring is worthwhile.

Comments     Threshold

This article is over a month old, voting and posting comments is disabled

america = teh crazy
By jwcalla on 3/18/2012 2:08:10 PM , Rating: 5
Ron Paul 2012!

RE: america = teh crazy
By blueaurora on 3/18/2012 4:05:13 PM , Rating: 3
Ron Paul has my support. He will never win. Rand Paul next time a new republican is up may well have a great shot then we can unwind some of this mess.

RE: america = teh crazy
By rs2 on 3/18/2012 10:25:46 PM , Rating: 3
Or just move somewhere less crazy. I relocated to Australia, myself, back in 2010.

RE: america = teh crazy
By mcnabney on 3/19/2012 9:38:08 AM , Rating: 1
You do understand that there are fewer protections in Australia, right? You jumped out of the frying pan and into the fire.

RE: america = teh crazy
By Samus on 3/19/2012 12:45:20 PM , Rating: 3
Ron will unfortunately never have the chance to be president himself, however, his son who shares his same ideas has a good chance in 2016.

The right guy never wins in this country, its annoying as hell.

RE: america = teh crazy
By kattanna on 3/19/2012 1:16:04 PM , Rating: 2
The right guy never wins in this country, its annoying as hell.

thats not entirely true. once in 1860 we did, and again oddly enough 100 years later in 1960 we elected 2 guys who were right for the job. and how did we repay them..

we shot them.

maybe the smart people have seen that trend and have said "how about no"


RE: america = teh crazy
By rs2 on 3/19/2012 8:21:54 PM , Rating: 5
Sorry but I have no idea what you're talking about. All I know is:

1. The taxes I pay are basically the same as what I paid as a California resident.
2. The minimum wage for most professions is $20/hour or better. This doesn't affect me directly, but I certainly feel better knowing that when I go out to eat everybody, down to the lowliest busboy, is earning a living wage and is not dependent upon my tips in order to make rent.
3. Everyone is entitled to a minimum four weeks paid vacation per year, from the first year of employment (i.e. not *after* the first year; paid vacation days accrue from the date of employment).
4. My healthcare is free. So is everybody else's.
5. Swearing and nudity may be (and routinely is) aired uncensored on broadcast television.
6. When I fly my footwear can stay on, and I don't have to walk through a full-body scanner or submit to a pat-down.
7. There's a carbon-tax to attempt to curtail greenhouse gas emissions, because people here actually pay attention to scientific research and aren't so stupid as to believe that the majority of the world's scientists are falsifying research in order to extort grant money and whatnot.
8. $50 gets you a license to set off consumer-grade fireworks, up to 20 kilos at a time, provided that you are over 18 and have no criminal history.
9. The national debt is 1% of the U.S.'s debt, and the government is not operating at a trillion dollar annual deficit.
10. There's no Patriot act, Protect-IP, SOPA, or PIPA.
11. There's no army of tea-party nutjobs either.

I suppose one could argue that there is Internet censorship in Australia, but as per Wikipedia:


Australia's laws on Internet censorship are amongst the most restrictive in the western world. However, the restrictive nature of the laws has been combined with almost complete lack of interest in enforcement from the agencies responsible .

So I have to count that as a win, at least for now. Particularly compared to U.S. organizations who may not technically have the same powers as their Australian counterparts but who are also far more aggressive in terms of using and overreaching their authority.

In any case, my quality of life here is better than it was back in the States, and the same is true in terms of the quality of life for the average citizen. There's no police or nanny state, and important civil liberties are strongly protected. So I really don't see what "protections" you think I've lost. And if it's just something that I've lost on paper, I don't really care.

And on the subject of Ron Paul, the guy's a snake. He doesn't care about protecting civil liberties. He'd rather throw landmark civil-rights cases like Roe v. Wade back to the states so that conservative regions can be "free" to implement their own repressively conservative social agendas.

All Ron Paul does is give libertarians a bad name. I'd take the ASP ( over Ron Paul any day.

Please hire a proof-reader
By mattclary on 3/19/2012 8:27:11 AM , Rating: 5
This is a great article, but there are so many grammatical mistakes it hurts the brain. I kept getting pulled out of the article because of them.

RE: Please hire a proof-reader
By p05esto on 3/19/12, Rating: -1
RE: Please hire a proof-reader
By DT_Reader on 3/19/2012 12:35:41 PM , Rating: 2
I was going to forward this to my congressperson, but the typos make it so unprofessional that he would easily dismiss it, and it's arguments, as nonsense.

RE: Please hire a proof-reader
By kattanna on 3/19/2012 1:17:40 PM , Rating: 2
This is a great article, but there are so many grammatical mistakes it hurts the brain. I kept getting pulled out of the article because of them.

to paraphrase FARK..

welcome to dailytech


Just do as your told.
By dark matter on 3/18/2012 2:30:53 PM , Rating: 2
And everything will be ok. Carry on.

RE: Just do as your told.
By JasonMick on 3/18/2012 2:37:50 PM , Rating: 1
Frank Shepard Fairey, rebel artist:

"Never trust your own eyes"
"Believe what you are told"


Good research.
By MGSsancho on 3/19/2012 12:08:01 AM , Rating: 2
Mister Mick. I would like to thank you a fine article. Overall balanced, organized and cited. Even though some of us are familiar with all of this but it is nice to have some history and opinions left out. Those of us with the ability to critically analyze ideas and events are capable of forming our own opinions :P

This is nothing
By TSS on 3/19/2012 7:54:47 AM , Rating: 2
Compared to what lies ahead:

It might take a little longer then the article says, but it's coming none the less. And compared to traditional media i think the US politicians know a hell of alot less about digital privacy....

By akentrepreneur on 3/19/2012 4:09:47 PM , Rating: 2
Well you can stop ISP's from spying on you and protect your privacy by getting an encrypted tunnel like and clearing evercookies (

By AMERICA HAS SECRETS on 3/26/2012 7:26:03 PM , Rating: 2
americans speak behind the doors of insecure cameras and ear droppers- while congress took the toilet bowl express with amtrak -a so called entity owned by congress stolen from a citizen who invested millions in transportation bonds-osha empowering the states- where is the bridge terror crosses or the line which defines incompetence - the in ability of america's government to amply protect or secure protected rights of pattent and copyright- explanation for loss of revenue- we as american's know more than we think- secrets rip up relationships like a toronado followed by a hurricane- our disastrous state of elections -country-finance- where democrats vote in every roll call- same dems here repubs follow the arrow - red line please never invest in government without a stand by collector- daily- we did it for them-worked like heck to find a tv screen that peeps back and voices-gimme dat wine gotta have that bottle

ISP Profit from piracy
By Beenthere on 3/18/12, Rating: -1
RE: ISP Profit from piracy
By Helbore on 3/18/2012 5:48:37 PM , Rating: 3
Isn't that like saying highway maintenance facilitate and support bank robbery because they build roads that can be used by getaway vehicles?

It's a stupid idea. ISPs are businesses and its not their job to be the police for another industry. If big media companies want ISPs to police their networks, they should start by giving the ISPs the money to do that, rather than expecting someone else to pay out - and if ISPs tell them to take a flying leap, then that's tough.

Not that I think this article has anything to do with piracy anyway.

This Is Why...
By mmatis on 3/18/12, Rating: -1
RE: This Is Why...
By FITCamaro on 3/18/12, Rating: 0
RE: This Is Why...
By mmatis on 3/19/12, Rating: -1
RE: This Is Why...
By mcnabney on 3/19/2012 9:46:12 AM , Rating: 3
You are both right.

The abuses happen because a whole bunch of people all just do 'a little'. You can never point to one bad person or one villain. It is a whole bunch of different people trying to do the 'right' thing in the 'wrong' way. Unfortunately the courts have been VERY slow in correcting this issue. Which party is responsible for putting conservative and authoritarian judges on the bench? Oh, and I still want to kick every Congressperson that voted for the PATRIOT Act in the crotch repeatedly. Russ Feingold, you are missed...

RE: This Is Why...
By amanojaku on 3/19/2012 10:21:03 AM , Rating: 4
Sigh... Yet another person who is ignorant of the structure and function of government. Cops are employed by LOCAL government (state, city, town, etc...) This is a FEDERAL measure. Local government has no involvement in this.

And if you're implying the police should rise up, revolt, and take over the "evil" government, I'd like to point out two things:

1) Our government isn't one big entity that works in harmony (Executive, Legislative, Judicial). A subset of the government is doing this (the FBI), and another subset of the government can reverse this: the Supreme Court. Unlike some countries, violence is unnecessary here.

2) If you feel violence is necessary, then maybe you should talk to a few other citizens and get their opinions. After all, if the government is oppressing you, your most obvious allies will be other citizens who feel the same way. You may be surprised, however, to learn that other people don't feel the same way. I've heard people say they WANT monitoring, because they feel it will keep them safe. You need to convince them of the dangers, first, otherwise, their support will vindicate the FBI's actions. They will then elect politicians who oppose such measures, or run for office themselves.

RE: This Is Why...
By mmatis on 3/19/12, Rating: -1
RE: This Is Why...
By DT_Reader on 3/19/2012 12:46:27 PM , Rating: 1
Where I live (and, sadly, in many other U.S. cities) it's the cops who abuse the law. They even have an internal investigation procedure that guarantees anything a cop tells other cops in an investigation cannot be used against them in court. Meanwhile, anything any member of the public tells a cop will be used against them in court. Nice double standard favoring the people authorized to kill the taxpayers who fund them. And kill them they do. I'm afraid to go into the city, but the county cops aren't much better.

And don't give me that "they're not all bad" crap, when the 99% "good" cops cover for the 1% "bad" cops. They're all bad.

RE: This Is Why...
By mmatis on 3/19/2012 3:47:41 PM , Rating: 1
Well said. Of course, that merely means the pig-suckers will be along shortly to down-rate you for daring to tell the truth...

"My sex life is pretty good" -- Steve Jobs' random musings during the 2010 D8 conference

Most Popular Articles5 Cases for iPhone 7 and 7 iPhone Plus
September 18, 2016, 10:08 AM
No More Turtlenecks - Try Snakables
September 19, 2016, 7:44 AM
ADHD Diagnosis and Treatment in Children: Problem or Paranoia?
September 19, 2016, 5:30 AM
Walmart may get "Robot Shopping Carts?"
September 17, 2016, 6:01 AM
Automaker Porsche may expand range of Panamera Coupe design.
September 18, 2016, 11:00 AM

Copyright 2016 DailyTech LLC. - RSS Feed | Advertise | About Us | Ethics | FAQ | Terms, Conditions & Privacy Information | Kristopher Kubicki