ISP Defies FBI's Gag Order, Agent's Warrantless Surveillance Demands
March 18, 2012 1:33 PM
(Source: Paramount Vantage)
DOJ: FBI abused "National Security Letters"; FBI: lack of accountability helps fight terrorists
Many know that the
(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
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
. 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
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
[PDF] by the
Justice Department Inspector General
, the FBI was found to have had sweeping and
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
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
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
, 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."
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
[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
[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
leaked out to
-- 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
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
[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."
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
, 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
and cell phone data grabs by State Police.
Groups working to fight these measures include the
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.
"The Space Elevator will be built about 50 years after everyone stops laughing" -- Sir Arthur C. Clarke
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