Saturday, January 22, 2011

National Security Letters and Gag Orders

On The Media - NPR

The most serious kind of subpoena - called a 'National Security Letter' - used to have a lifetime gag-order automatically attached. That is until Nicholas Merrill appealed his and won the right to talk about it. Despite 50,000 national security letters a year there are only three organizations who have ever won the right to say they got one. Nick Merrill explains why he's the exception and the rule.

The National Security Letter provision of the Patriot Act radically expanded the FBI's authority to demand personal customer records from Internet Service Providers, financial institutions and credit companies without prior court approval.

National Security Letters

American Civil Liberties Union

Through NSLs the FBI can compile vast dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of e-mail addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website. The provision also allows the FBI to forbid or "gag" anyone who receives an NSL from telling anyone about the record demand. Since the Patriot Act was authorized in 2001, further relaxing restrictions on the FBI's use of the power, the number of NSLs issued has seen an astronomical increase. The Justice Department's Inspector General has reported that between 2003 and 2006, the FBI issued nearly 200,000 NSLs. The inspector General has also found serious FBI abuses of the NSL power.

The ACLU has challenged this Patriot Act statute in court in three cases.

* The first such lawsuit, Doe v. Holder, which resulted in numerous court rulings finding parts of the NSL statute unconstitutional, was settled in August 2010. As a result, the "John Doe" client, Nicholas Merrill, is finally able to publicly identify himself and his former company as the plaintiffs in the case.
* Library Connection v. Gonzales, involved an NSL served on a consortium of libraries in Connecticut. In September 2006, a federal district court ruled that the gag on the librarians violated the First Amendment and the government ultimately withdrew both the gag and its demand for records.
* Internet Archive v. Mukasey, involved an NSL served on a digital library. In April 2008, the FBI withdrew the NSL and the gag a part of the settlement of a legal challenge brought by the ACLU and the Electronic Frontier Foundation.

In addition, the ACLU has filed a number of Freedom of Information Act (FOIA) request to learn more about the government's use of NSLs.

* In 2003, the ACLU filed a FOIA request seeking information about the FBI's use of NSLs and after filing a lawsuit succeeded in obtaining a number of key documents.
* In April 2007, the ACLU filed a FOIA request seeking information about the Department of Defense and CIA's use of National Security Letters. After filing a lawsuit, the ACLU received over 500 documents from its request.
* In November 2007, the ACLU filed another FOIA request with the FBI seeking information about the FBI's issuance of NSLs at the behest of other agencies. After filing a lawsuit, the ACLU obtained the documents they were seeking.

In April 2007, the American Civil Liberties Union filed a Freedom of Information Act (FOIA) request with the Department of Defense and the CIA to turn over documents concerning their use of National Security Letters (NSLs) to demand private and sensitive records about people within the United States without court approval. After they failed to comply, the ACLU filed a lawsuit in June 2007.

NSLs are secretly issued by the government to obtain access to personal customer records from Internet service providers, financial institutions, and credit reporting agencies. In almost all cases, recipients of the NSLs are forbidden, or “gagged,” from disclosing that they have received the letters. While the FBI has broad NSL powers and compliance with FBI-issued NSLs is mandatory, the Defense Department’s NSL power is more limited in scope, and, in most cases, compliance with Defense Department demands is not mandatory.

The New York Times first revealed in January 2007 that recipients of the letters reported confusion over the scope of the information requested and whether compliance with the NSL was legally required. The documents released to the ACLU confirm that the letters are coercive and do not make clear that compliance with the Defense Department’s “requests” for information is voluntary.

In October 2007, the ACLU received documents from the Department of Defense that reveal that DoD has secretly issued hundreds of NSLs to obtain private and sensitive records of people within the United States without court approval. A comprehensive analysis of 455 NSLs issued after 9/11 shows that the Defense Department seems to have collaborated with the FBI to circumvent the law, may have overstepped its legal authority to obtain financial and credit records, provided misleading information to Congress, and silenced NSL recipients from speaking out about the records requests.

FBI Testifies Before House On National Security Letters
American Civil Liberties Union
CONTACT: (202) 675-2312 or

WASHINGTON – The FBI’s general counsel and the Justice Department Inspector General (IG) testified today before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties on the most recent IG report on the FBI’s use of National Security Letters (NSLs). NSLs allow the FBI to secretly demand personal records about innocent customers from Internet Service Providers (ISPs), communications service providers, libraries, financial institutions and credit reporting agencies without suspicion or prior judicial approval. The FBI can then bar recipients of NSLs from disclosing anything about the records demands.

In January, the IG released a report on the FBI’s use of “exigent letters,” or emergency letters, to gain private records for investigations when no emergency existed. The FBI routinely issued NSLs after the fact in an attempt to legitimize the use of exigent letters. Today, the IG testified on the extent of the abuse of exigent letters and “other informal requests for telephone records.”

The NSL statute was greatly expanded under the Patriot Act, passed hastily by Congress in the days following 9/11. After the statute’s expansion, the IG’s office released a series of reports over the last several years, including its January report, outlining systemic misuse and abuse of NSLs by FBI agents. Late last year, to avoid expiration on December 31, 2009, Congress extended three provisions of the Patriot Act through February 28, 2010. Despite bills pending in both the House and the Senate to amend the expiring provisions, as well as the NSL provision, Congress decided instead to move ahead with a straightforward reauthorization in late February.

The following can be attributed to Laura W. Murphy, Director of the American Civil Liberties Washington Legislative Office:

“It has become painfully clear that unchecked Patriot Act power will inevitably lead to abuse, and National Security Letters are a poignant example. To ensure that our privacy and free speech rights are protected, there must be clear oversight and strict guidelines tied to their use. Innocent Americans have been swept into investigations and recipients have been barred from speaking about it publicly.

“Not only that, report after report from the FBI’s own Inspector General illustrates the blatant and systemic abuse of national security letters. Congress has less than a year before it must address the Patriot Act again. NSL reform must be made a priority this year instead of being kicked further down the road."

The ACLU Union and the New York Civil Liberties Union filed a lawsuit in 2004 on behalf of an ISP that received an NSL, challenging the FBI's authority to demand records through NSLs and to gag NSL recipients. A federal appeals court ruled in 2008 that parts of the NSL statute's gag provisions were unconstitutional and sent the case back to the lower court to decide whether the gag on the ISP could stand. In October 2009, a federal court ruled that the government can continue to enforce the now six-year-old gag order on the ISP even though the FBI abandoned its request for records several years ago.

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