Nsl Patriot Act National Security

NSL

Patriot Act

National Security Letters (NSL) s -- Making Americans feel insecure about their personal records

One of the least publicized, yet possibly most threatening elements of the Patriot Act, a sweeping law passed in the wake of the September 11, 2001 terrorist attacks were the new provisions it granted to intelligence-gathering agencies. Critical to the provisions of the Act were an unprecedented expansion of the use of National Security Letters. This "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, 2009, ACLU). Portions of this aspect of the Patriot Act were declared unconstitutional in 2007 by a federal judge yet the FBI continues to issue "tens of thousands of National Security Letters (NSLs) each year…the FBI says it typically orders that such letters be kept confidential to make sure that suspects do not learn they are being investigated, as well as to protect 'sources and methods' used in terrorism and counterintelligence probes" (Eagan 2007, p.1).

However, it is difficult to validate this claim given that "nearly all NSLs come with gag orders forbidding the recipient from ever speaking of the subpoena, except to a lawyer" (Singel 2008). According to members of the intelligence community, NSLs have become a critical weapon in monitoring suspected terrorists. But in the view of most civil libertarians, the expanded use of NSLs has given the government unchecked power to keep tabs on innocent American's Internet-surfing habits that might be perfectly innocent, yet look mildly suspicious. This could result in ordinary Americans becoming unfairly embroiled in an investigation, even accused of terrorism under the law -- and even, one could argue, result in an inefficient use of government resources, as real terrorist activity was being ignored, while an individual surfing terrorism in a Google search might be targeted, because he was doing a research paper on the subject for school.

Before the creation of the 2001 Patriot Act, FBI had the ability to issue NSLs for many years, which it did to a limited degree, usually with a focus on financial records of suspected terrorist and enemy agents. However, the Patriot Act and its subsequent reformation and reissuance in 2003 and 2005 "significantly relaxed the rules for using them [NSL] s while increasing the secrecy requirements. The result has been a surge in NSL requests, from fewer than 9,000 in 2000 to nearly 50,000 in 2005 (Egan 2007, p.1). And this is only a rough estimate. Although "FBI guidelines on using NSLs warned of overusing them, two Congressionally ordered audits revealed that the FBI had issued hundreds of illegal requests for student health records, telephone records and credit reports. The reports also found that the FBI had issued hundreds of thousands of NSLs since 2001, but failed to track their use. In a letter to Congress…the FBI admitted it can only estimate how many NSLs it has issued" (Singel 2008). In short, not only has the FBI been granted additional powers by the Act, but it has failed to vet, monitor, and keep track of the issuance of NSLs in accordance with its new responsibilities.

Effectively, the Patriot Act eliminated the need for any openness or transparency in issuing NSLs as well as the statutory requirement that the FBI have a legally factual basis for seeking records rather than a vague suspicion. It also eliminated the previous requirement that the information being sought "pertain to" a foreign power or the agent of a foreign power. "This requirement used to protect information about Americans because few are agents of a foreign government, a foreign terrorist organization, or another foreign power. Instead, today it is sufficient for the FBI merely to assert that the records are relevant to an investigation to protect against international terrorism or foreign espionage…in 2003, Congress dramatically expanded the types of 'financial institutions' on which an NSL can be served to include travel agencies, real estate agents, jewelers, the Postal Service, insurance companies, casinos, car dealers, and other businesses not normally considered 'financial institutions'" (Schuman 2008). The irony is deep -- while exercising precious little oversight over real financial institutions; Congress gave the FBI carte blanche to look into the financial records of ordinary Americans by calling the Postal Service a 'financial institution.'

Civil liberties groups and individuals charged under the Act have challenged it in court. The federal judge that declared aspects of the Act unconstitutional in 2007 struck down a portion of the Patriot Act, specifically the aspect that dealt with electronic records, "ordering the FBI to stop its wide use of a warrantless tactic for obtaining e-mail and telephone data from private companies for counterterrorism investigations," saying that this "violates the First Amendment and constitutional provisions on the separation of powers, because the FBI can impose indefinite gag orders on the companies and the courts have little opportunity to review the letters" (Egan, 2007, p. 1 ). Telecommunications companies and telephone records are protected by the First Amendment -- hence the need for a warrant, not a mere request for record.

In short, under the original provisions of the FBI could do what it wanted, without having to answer to the courts or to Congress and could use NSLs to bully telecommunications or communications organizations and to silence both defendant's and the companies' First Amendment rights after the fact with indefinitely lasting gag orders. The judge said the FBI and Congress had both engaged in "the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values," issuing a sharp rebuke to the legislative and executive branch, even after revising the act in 2005 to take into account an earlier ruling by the judge on the same topic (Eagan 2007, p1). At the ruling, many telecommunication companies breathed a sign of relief, as this aspect of the Patriot Act essentially forced them into a perpetual conflict of interest between themselves and their customers when they "want to comply with government efforts to fight terrorism but also want to be seen as respecting customers' privacy" (Egan 2007, p.2).

If a company was continually solicited for information from the FBI they might lose customers -- if the company fought the provision, the legal resources of the government would be turned against them. "There is a natural tension between good citizenship on the one hand and sound business judgment on the other," given the nature of the Act, as "when complying necessitates that they partner with the government, and when it all comes out [in public], it's bad for business" (Egan 2007, p.2).

However, the ruling was not all-encompassing: it left "untouched the FBI's ability to demand bank records, credit reports and other financial data related to counterterrorism and other probes, because those authorities are covered by other statutes" (Eagan 2007, p1.). The decision of Judge Victor Marrero of the Southern District of New York indicated he did not make his decision in haste. He stressed the important role the judiciary plays in terms of the separation of powers of the constitution, and that the "tradition of judicial oversight" cannot be "undermined by national security legislation…the pages of this nation's jurisprudence cry out with compelling instances illustrating that, called upon to adjudicate claims of extraordinary assertions of executive or legislative or even state power, such as by the high degree of deference to the executive that the Government here contends [the NSL provision of the PATRIOT Act] demands of the courts, when the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of liberty…the Constitution was designed so that the dangers of any given moment would never suffice as justification for discarding fundamental individual liberties or circumscribing the judiciary's unique role under our governmental system in protecting those liberties and upholding the rule of law" (Paul 2007). The judge noted that during times of war, there is always a temptation to reign in individual liberties, an action that the government often regrets in hindsight.

The fight against the expanded use of NSLs goes on: The ACLU has successfully fought against a number of other NSLs, including one request to a library system asking for web surfing histories of patrons, a request to a small New York hosting provider asking for data about a website it hosted, and to the Internet Archive which was asked to reveal the identity of a user (Singel 2008). Its most recent victory was in 2008, when an "appeals court invalidated parts of the statute that wrongly placed the burden on NSL recipients to initiate judicial review of gag orders, holding that the government has the burden to go to court and justify silencing NSL recipients. The appeals court also invalidated parts of the statute that narrowly limited judicial review of the gag orders -- provisions that required the courts to treat the government's claims about the need for secrecy as conclusive and required the courts to defer entirely to the executive branch" (Courts, 2009, ACLU).