Thursday, May 21, 2009

FBI's Use of National Security Letters Soar in 2008

The FBI's employment of Constitution-killing National Security Letters (NSLs) to nab the personal details of Americans without benefit of a court order soared in 2008.

NSLs are written demands by the Bureau (call them self-authorized subpoenas) that compel internet service providers, credit card companies, banks and other financial institutions to turn over records about their customers.

In a letter to the Senate and House Judiciary and Intelligence Committees May 14, U.S. Assistant Attorney General Ronald Weich said that the FBI issued 24,744 NSLs in 2008 compared to 16,804 the previous year.

While less than the 49,000 letters issued by the Bureau in 2006, it still represents a dramatic rise in the use of these onerous warrants.

Under cover of counterterrorism or espionage investigations, the FBI can demand that communications records such as subscriber information, phone numbers, email addresses, web sites browsed or personal financial records can be seized and catalogued by Bureau snoops.

The draconian USA Patriot Act vastly expanded the type of information subject to seizure. Arriving without benefit of a court review and with a lifetime gag order attached, recipients are prohibited from ever disclosing they've received such an oppressive request. As Wired reported May 19,

The FBI's use of NSLs has been sharply criticized. In 2007, a Justice Department Inspector General audit found that the FBI, which issued almost 200,000 NSLs between 2003 and 2006, had abused its authority and misused NSLs.

The inspector general found that the FBI evaded limits on (and sometimes illegally issued) NSLs to obtain phone, e-mail and financial information on American citizens, and under-reported the use of NSLs to Congress.

About 60 percent of a sample of the FBI's NSLs did not conform to Justice Department rules, and another 22 percent possibly violated the statute because they made improper requests of businesses or involved unauthorized collections of information. (Kim Zetter, "FBI Use of Patriot Act Authority Increased Dramatically in 2008," Wired, May 19, 2008)

As Gregory T. Nojeim, the Center for Democracy & Technology's Director of that organization's Project on Freedom, Security & Technology testified last year before the Senate Judiciary Committee:

The intelligence investigations in which NSLs are issued are not only secretive and long running but also encompass purely legal, even political activity. The PATRIOT Act seriously weakened the standard for issuance of NSLs, loosened internal oversight, and allowed NSLs to be used to get sensitive records on innocent persons suspected of absolutely no involvement in terrorism or espionage. The Intelligence Authorization Act for FY 2004 dramatically expanded the scope of NSLs, so they can now be served on the US Postal Service, insurance companies, travel agents, jewelers, and car dealers, among others. Moreover, agencies other than the FBI have been authorized to issue NSLs, and the number of government officials who can authorize NSLs has been expanded. ...

These realities are compounded by the fact that the FBI keeps records for a very long time, even when it concludes that the person to whom the information pertains is innocent of any crime and is not of any continuing intelligence interest. Information is increasingly being shared across agency boundaries, but without audit trails or the ability to reel back erroneous or misleading information, or information that is about people who are of no continuing criminal or intelligence interests. Finally, the PATRIOT reauthorization act made many NSLs for the first time ever compulsory and placed criminal penalties on violation of the non-disclosure requirement (commonly known as a "gag"), changes that probably make it even less likely NSLs will be challenged. ("Statement of Gregory T. Nojeim before the Senate Judiciary Committee," Center for Democracy & Technology, April 23, 2008, pp. 2-3)

Weich's letter to Congress said that the Bureau issued a number of "corrective NSLs" to "provide legal authority to retain information it had previously received," primarily from so-called "exigent" or informal "emergency" requests to a business or individual to voluntarily hand over information until a formal warrant is issued to cover FBI demands. The Justice Department claimed,

As you may know, in March 2007, and again in March 2008, the Inspector General of the Department of Justice (OIG) released reports regarding the FBI's use of NSLs. One of the Inspector General's findings was that the manner in which the FBI tracked NSLs resulted in inaccuracies in the statistics reported to Congress. In response to the Inspector General's findings and recommendations, the FBI has taken substantial steps to correct the identified deficiencies in its statistical tracking of NSLs. ("Letter to Senate and House Judiciary and Intelligence Committees," U.S. Department of Justice, Office of Legislative Affairs, May 14, 2009)

There it is, problem solved! While the DoJ may have "corrected" the FBI's "identified deficiencies" in its "statistical tracking," the wider question of issuing blanket orders to seize private data by an out-of-control domestic political police agency are not addressed by Weich, nor would it appear sought by Congress.

Antifascist Calling reported last year how Brewster Kahle, the founder of the Internet Archive, a project founded in 1996 that created a digital library of the web, after being served with an NSL in 2007, sued the FBI--and won.

After a legal challenge mounted by the American Civil Liberties Union and the Electronic Frontier Foundation in Federal District Court in San Francisco, the Bureau was forced to withdraw the NSL and unseal the case, allowing the Archive's founder to speak out.

On May 18, the ACLU reported that the administration will not ask the Supreme Court to "review a decision that struck down Patriot Act provisions that allow the government to impose unconstitutional gag orders on recipients of national security letters (NSLs)."

According to the civil liberties' watchdog group, "A lower court ruled in 2007 that the gag order provisions were unconstitutional, and the U.S. Court of Appeals for the Second Circuit upheld that ruling in 2008. The government's time for petitioning the Supreme Court for review has now expired." Jameel Jaffer, the Director of the ACLU's National Security Project said:

"We're very pleased that the government has decided not to seek further review of the appeals court's decision. The appeals court was right to find that the FBI can't be given the unchecked power to impose gag orders on the recipients of national security letters, and the government's decision not to seek Supreme Court review means that FBI gag orders will finally be subject to meaningful judicial review. As the last few years have shown us, the blanket of secrecy that cloaks the FBI's activities is an invitation to abuse. Judicial review may not end that abuse altogether, but it will certainly discourage it." ("Obama Administration Will Not Ask Supreme Court to Take Up National Security Letter 'Gag Order' Decision," American Civil Liberties Union, Press Release, May 18, 2009)

While certainly good news, I'm far less sanguine about the FBI's interest in seeking "meaningful judicial review" before targeting political dissent in the United States.

Indeed, the same day the ACLU issued their press release, Federal Computer Week reported that the FBI "is looking for fans on Facebook and followers on Twitter to expand its ability to share information with millions of social media users."

John Miller, a former "journalist" with ABC News and currently an Assistant FBI Director, told the technology publication: "To reach out to the public, we need to be where people are, and we know tens of millions of people spend their time in social media sites."

The social media programs supplement other information technology tools the bureau has deployed in recent years to make it easier for people to submit tips and get news from the FBI, bureau officials said May 15. In addition to a Facebook page and tweets sent via Twitter, the bureau also has a YouTube page and is testing the usefulness of the virtual world Second Life. (Ben Bain, "FBI expands use of social media," Federal Computer Week, May 18, 2009)

FBI securocrats said the widgets the Bureau have released in recent weeks have been "popular," and the domestic spooks plan to release new ones in coming weeks for iPhones and iPod Touches.

Which just goes to show that during the new, golden age of Obama: Plus ça change, plus c'est la même chose!

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