One of America's top electronics corporations goes head to head with the feds over information privacy

The National Security Letter (NSL) is a tool used by the U.S. Federal Bureau of Investigations to avoid the "burden" of due process, directly seizing private citizen data from corporations without warrant.  With the USA PATRIOT (Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism) Act use of the NSL has exploded, as the FBI has increasingly used the technique to seize digital information such as browsing history and phone records.

I. We Aren't Gonna Take It

Usually when a company gets an NSL, they just bend over and take it.  While it's illegal to even talk about NSLs, at least one company did publicize that it received one, complaining about how abusive the process is.  Four out of five companies reportedly privately challenged one of the 300,000 NSLs sent since 2000, but most of these internal pleas to FBI higher-ups fell on deaf ears.

NSLs come with a permanent ban on free speech.  Unless a company or individual files a petition to remove the gag order surrounding the NSL, to talk about it publicly is a federal crime.

But something new is afoot. A company has for the first time publicly refused to bend over and take it, openly acknowledging the information demand (in a clever manner) and challenging its legality.

Search on Google
Google has become the highest profile player yet to publicly challenge an NSL.
[Image Source: Google Images/Unknown]

When the FBI approached Google Inc. (GOOG), the world's largest smartphone operating system maker and search engine provider, Google refused to turn over its customers' private data.  Instead it took the less travelled path, filing a challenge in the local federal court, the U.S. District Court for the Northern District of California's San Francisco office.

What it did next was more unusual.  It filed a petition to seal its previous request, which was revealed to be a request to set aside a “legal process” pursuant “to 18 U.S.C. Section 3511 (a) and (b)".  Section (a) of that federal law allows recipients of an NSL to file to have it overturned if it is deemed "unreasonable, oppressive or otherwise unlawful"; Section (b) allows the recipient to ask to have the gag order removed.

Until several years ago, Section (b) was not in effect. However, a challenge to the blanket gag order provision by the Library Connection to a 2005 NSL over library patron data forced Congress to provide an appeals mechanism after a federal judge ruled such airtight gag orders to be unconstitutional.

FBI masked agent
FBI agents can issue NSLs with little supervision, and it's illegal to talk about the warrantless seizures of citizen data. [Image Source: Alamy]

The request to seal the challenge is clever.  While under 18 U.S.C. Section 2709 it's illegal for the recipient of the NSL to directly reveal that it received the letter, by issuing a filing to seal its challenge (which is typically automatically sealed) Google cleverly circumvents the disclosure prohibition.

Kevan Fornasero, Google’s lawyer writes:

[Petitions] filed under Section 3511 of Title 18 to set aside legal process issued under Section 2709 of Title 18 must be filed under seal because Section 2709 prohibits disclosure of the legal process.

In other words, the wink-wink, nod-nod response from Google is, "We can't tell you or not whether we received an NSL, but be sure to seal that petition related to challenging an NSL."

II. Federal Judge: NSLs are Unconstitutional 

It's a clever tactic to say the least.

And it's one that's likely inspired by Federal Judge Susan Illston, who recently ruled in the San Francisco court that NSLs were unconstitutional, and hence illegal.  In her ruling she cited the First Amendment of the Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Constitution

...and argued that NSLs also violate separation of powers, by granting unchecked authority to the executive branch (who overseas law enforcement agencies).  In her ruling she also ruled the system of challenging the gag orders was unconstitutional, as it was loaded with exemptions that could once more preempt any sort of due process challenge.

NSL Order

This is the second time NSLs have been ruled unconstitutional; previously in 2007 a federal Judge Victor Marrera of the U.S. District Court for the Southern District of New York.  In that case the 2nd U.S. Circuit Court of Appeals dismissed the ruling, saying that the issues were moot in the case in question, although circuit judge Judge Richard Cardamone warned that the gag orders could serve as a cover for misconduct.

Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, who filed the challenge on behalf of an unnamed telecom who received the order in 2009 states, "We are very pleased that the Court recognized the fatal constitutional shortcomings of the NSL statute.  The government’s gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience."

The EFF stepped into the debate after the federal government filed a secret sealed lawsuit against the company in question.  While the law technically permits challenges to NSLs, the feds argued that challenges should not be allowed in all cases, and that the company in question should be punished for its insubordination.

Mr. Zimmerman comments to Wired, "It’s a huge deal to say you are in violation of federal law having to do with a national security investigation.  That is extraordinarily aggressive from my standpoint. They’re saying you are violating the law by challenging our authority here."

III. A Long Road to Rebellion Against the NSL

The latest victory comes after the more roundabout confrontation involving the Judge Marrero 2007 ruling.  That case involved a small ISP owner Nicholas Merrill successfully removed a gag order during a challenge of an NSL regarding one of his clients.  

Mr. Merrill argued customer records were protected information and to request them without warrant was unconstitutional.  But that legal hypothesis was never put to the test; the FBI dropped its demand for Mr. Merrill's customer records leaving the question of legality unanswered.

Judge Susan Illston
Judge Susan Illston has found NSL unconstitutional, giving the feds 90 days to appeal her ruling.
[Image Source: Jason Doly]

The answer could come in the next 90 days.  That's how long Judge Illston stayed her order to give the Obama administration time to appeal the ruling to the, an appeal which will almost surely occur.  For the next 90 days NSLs are legal -- but after that until the appeal concludes they are arguably illegal.

Marc Rotenberg, president and executive director of the Washington- based Electronic Privacy Information Center, tells Bloomberg, "We are in this interesting in-between moment in which the government is still able to enforce its authority.  I suspect that this filing is an effort to push the issue further."

Gag order
Google and others are fighting the gag order on NSLs. [Image Source: How to be a Dad]

To date Google has been one of the largest recipients of NSLs.  While it can't say exactly how many it's received, legally, it says it's received between 0 and 999, indicating hundreds of requests.  It did say over 1,000 customer records were affected by these requests.  In a March 2013 report Richard Salgado, Google’s legal director for law enforcement and information security, thanked FBI agents for "working with us to provide greater insight into the use of NSLs.

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

Many Americans might be inclined to support ditching warrants in order to fight the shadowy specter of "terror", given that due process could cost precious time and time is often short when preventing attacks.

However, the damage done by taking away the freedom of due process may well be far greater than the freedom taken away by loss of life from a terrorist attack.  In a system in which abuse can occur, typically abuses do occur.

And abuses did occur when it comes to NSLs -- lots of them.
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.

Even if there's no major push from the top for Orwellian "macroscopic" abuses -- yet -- a major source of these problems is the fact that agents issuing the NSLs often receive little feedback or scrutiny, reportedly from their supervisors.  The PATRIOT Act explicitly allowed agents to send NSLs without even telling their supervisor.  Thus no one appears to be watching the watchmen.

To make matters worse, the agency appears to have tried to cover up its dirty laundry by underreporting (essentially lying about) the number of NSL issued, in its reports to Congress.  Whistleblowers have told horror stories regarding abuses from NSLs, wiretaps, and other warrantless/poorly supervised police tools.

Possible motive for these discrepancies was elucidated when the Inspector General found numerous agents to be evading internal agency policies on when the NSL could be issued.  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.

Some federal agents have reportedly used NSLs to stalk co-workers or exes.
[Image Source: SLC AD]

Of course precise 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 embarrassment 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).

Google and the EFF's challenges to the legality of NSLs could restore due process and end this abuse.  But it remains to be seen how they will fare in the circuit appeals court, and possibly the U.S. Supreme Court.

Source: Bloomberg

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