The FBI’s Secret Weapon

By William Fisher

On every single day of every single calendar year, an average of 137 men and women in the US have been receiving letters from the government that can only be seen as either tragic or hilarious.

Experience with these missives since their inception in 1978 strongly suggests that hilarious is not winning first place.

These are not “get out the vote” letters from candidates. They don’t contain news of the campaigns’ latest sex scandals. They aren’t for raising funds. If they’re raising anything it’s blood pressure and hackles.
And they’ve been having that effect for more than a decade. It was following the terrorist attacks of 9/11 that a bleary-eyed and clearly fearful Congress convened to pass the USA Patriot Act – a potpourri of existing and new laws designed to prevent the Jihadis from annihilating America.

The law – actually an old law greatly expanded -- had been printed only the night before the vote. Most members of Congress had time only to skim it, if that. The vote in the Senate was 99-1. Only Senator Russ Feingold, Democrat from Wisconsin, had the guts to vote “no.”

Attorney General John Ashcroft dodged a heart attack and President George W. Bush quickly demonstrated his penmanship.

Now, one of the provisions in the new law was known as the National Security Letter (NSL). NSLs are, effectively, administrative subpoenas. They are extensively used by the FBI – it’s estimated that some 50,000 NSLs are issued annually.

The letters order specific entities or organizations to turn over various records and data pertaining to individuals, usually members or customers. No probable cause or judicial oversight is required.

The original versions of the law also contained an order of silence that prohibits the recipient of the letter from disclosing that the letter was ever issued. Disclosing it to anybody – lawyer, wife, doctor, clergy, and so forth, under penalty of criminal prosecution.
Constitutional? Well, on the face of it, as the lawyers like to say, it would seem deeply flawed at a number of levels. Violation of the Fourth Amendment against unreasonable searches and seizures is but only of them. Another is the “gag order,” which strips away the Constitutional first amendment guarantee of freedom of speech. Only the courts can impose such a penalty, and judges use it sparingly and for short periods of time only. The gag order has been ruled unconstitutional.

On the Search and Seizure issue, listen to Chip Pitts, former head of Amnesty and currently a lecturer in law at Stamford and Oxford. Here’s what he told Prism:

“National Security Letters violate Fourth Amendment rights to freedom from unreasonable searches and seizures without a warrant and probable cause to believe a crime or terrorism was involved, which also have been eroded by the FISA Amendments Act (allowing the Bush-era illegal warrantless surveillance of Americans’ phone calls, emails, and web-surfing habits).”

And he adds: “The evidence is overwhelming that other sections of the Patriot Act also trample on civil liberties -- provisions including section 505 regarding the notorious and repeatedly abused National Security Letters (allowing the FBI to search a wide variety of library and business records without probable cause, any judicial review, or notifying the target); section 215 (the library and business records provision requiring the secret FISA court to approve searches on a mere ‘relevance’ standard and probably also being interpreted to allow a secret datamining program some Senators say would ‘stun and ‘anger’ the US public if revealed); section 213 (allowing sneak and peek” secret black bag job searches of homes); and section 218 (basically importing expansive foreign intelligence surveillance powers into domestic criminal law).”
The New York Times points out that the 2001 Act did not create the NSL authority. However, it lowered the standard. “Before passage of the 2001 Act, the government had to have specific and articulable facts demonstrating that the information sought pertained to a foreign power or an agent of a foreign power. The 2001 Act provides that the FBI may use NSLs to obtain information from a ‘wire or electronic communication service provider’ that is merely ‘relevant to an investigation to protect against international terrorism or clandestine intelligence activities’.

In “Tales from Stasiland: The letter that makes you disappear,” Scott Horton writes, “

One of the creepier weapons in the arsenal of the national-security state is the ‘national-security letter’ or NSL. It’s no ordinary letter, and it travels postage-free, but at enormous expense to the taxpayers. The FBI issues roughly 50,000 of them a year, and the Justice Department’s own internal review in 2007 concluded that many of them were issued abusively, skirting the law and internal rules.”

The Constitutional lawyer and columnist for Harpers Magazine goes on: “The idea is simple: the device is something like a subpoena, though it doesn’t require approval of a judge to issue. Instead, the FBI requires the recipient to help it in an investigation targeting a third party. It might be dropped on a librarian, with a demand that she tell the FBI every book that a certain subscriber checked out, every magazine he perused, and every time he accessed the Internet using a computer at the library. Or it might go to an Internet service provider, requiring information about every website viewed by a certain customer.”
Now as a result of a partial settlement in one of several cases in which the FBI’s use of NSLs is being successfully challenged, one of the recipients has been allowed to emerge from the shadows.

Manhattan native Nicholas Merrill ran an Internet start-up named Calyx. He was the recipient of an NSL demanding that he “provide 16 categories of ‘electronic communication transactional records,’ including e-mail address, account number and billing information.”

The FBI withdrew its NSL to Merrill in 2006, apparently after Merrill made it clear he was not going down without a fight.

Ellen Nakashima has profiled Merrill in a piece in the Washington Post. Here’s her lede:

“For six years, Nicholas Merrill could not tell even his fiancée, his closest friends or his mother that he is “John Doe” — the man who filed the first-ever court challenge to the FBI’s ability to obtain personal data on Americans without judicial approval. Friends would mention the case when it was in the news and the normally outspoken Merrill would change the subject. He would turn up at the federal courthouse to hear the arguments, and in an out-of-body moment he would realize that no one knew he was the plaintiff challenging the FBI’s authority.”
“What led Merrill to mount a challenge against the use of NSLs?”

“Two things, he said, “just leaped out at me.” The first was the letter’s prohibition against disclosure. The second was the absence of a judge’s signature. “It seemed to be acting like a search warrant, but it wasn’t a search warrant signed by a judge,” said Merrill.

“He said it seemed to him to violate the constitutional ban against unreasonable searches and seizures. The letter said that the information was sought for an investigation against international terrorism or clandestine intelligence activities. Merrill said he thought it ‘outlandish’ that any of his clients, many of whom were ad agencies and major companies as well as human rights and other nonprofit groups, would be investigated for terrorism or espionage.”
“It’s a perfect example of how the government can use its broad powers to silence people,” Merrill told The New York Times. Until August, he was forbidden to acknowledge the existence of a 2004 letter that the company he founded, the Calyx Internet Access Corporation, received from the F.B.I.”

According to the ACLU, Merrill is now free to speak about the request, but he is still barred from discussing what information he had been asked to provide. As a result, he said, before he gives a talk he consults a six-page guide prepared by his ACLU lawyers to be sure that he complies with the order to avoid risking a punishment of five years in prison.
The government cites national security as the reason the contents of the letters — even their existence — are kept secret. The FBI says it is trying to prevent plots as they are being hatched.

Today there appears to be general agreement that it has become easier to challenge the letters’ requests as well as their secrecy. At the moment, there are no new challenges in the court system, the government and the ACLU say.

The New York Times reports that, to one of Merrill’s ACLU lawyers, Jameel Jaffer, the smooth operation of the system is a sign that it is not working. The privacy rights at stake are not those of the companies who hold the information, Jaffer said, but “about people whose records are held.” And those people should be told, he said.

“People used to be the custodians of their own records, their own diaries. Now third parties are custodians of all that,” he said. “Everything you do online is entrusted to someone else — unless you want to go completely off the grid, and I’m not even sure that is possible.”

And life for the NSL appears to be heating up elsewhere as well. According to the Electronic Frontier Foundation (EFF) , the U.S. government with assistance from major telecommunications carriers including AT&T has engaged in a massive program of illegal dragnet surveillance of domestic communications and communications records of millions of ordinary Americans since at least 2001.

The EFF web site writes that news reports in December 2005 first revealed that the National Security Agency (NSA) has been intercepting Americans’ phone calls and Internet communications. Those news reports plus a USA Today story in May 2006 and the statements of several members of Congress revealed that the NSA is also receiving wholesale copies of their telephone and other communications records. All of these surveillance activities are in violation of the privacy safeguards established by Congress and the U.S. Constitution.

The web site reports that EFF is fighting these illegal activities on multiple fronts. In Hepting v. AT&T EFF filed the first case against a telecom for violating its customers' privacy. In addition EFF is representing victims of the illegal surveillance program in Jewel v. NSA a lawsuit filed in September 2008 against the government seeking to stop the warrantless wiretapping and hold the government officials behind the program accountable.

At the end of the day, one would have to assess NSLs as quirky – yet highly dangerous law. It’s quirky because it seems to oblige those who don’t like headlines like “Here’s Some News The Government Doesn’t Want You to Know.”

It’s quirky because it seems to disappear from the headlines for long periods for everyone save those who aspire to Ph. D’s in NSLs, and then out of nowhere comes rushing back to make big news. In reality, it simply keeps stepping smartly along, avoiding major collisions and remaining largely invisible to the public and the press.

“The Press” would be a hefty segment of Washington DC journalists, those who are often dubbed “the stenographers” – those corporate scriveners who each day trade substance for access.

We shouldn’t be surprised that some Senators say the abuses in the Patriot Act would ‘stun’ and ‘anger’ the US public if revealed. We should be surprised that there aren’t’ a lot more lawmakers – and their constituents -- of both parties sounding ‘stunned’ and ‘angered’ that they slept while their liberties became bad dreams.

This article originallly appeared on the pages of Prism Magazine