National Security Letters: Eviscerating the constitution since 1978


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by James Corbett
January 31, 2012

The passage of the Patriot Act in October 2001 is by now an all-too-familiar story. The American people, already suffering from the trauma of 9/11, were pushed into outright panic by the anthrax attacks, a series of anthrax-laced mailings that killed five, injured 17 and shut down congress for the first time in modern history. The Act itself was introduced on a Tuesday and signed into law on Friday, before anyone had read let alone understood the sweeping changes it would introduce to American law.

One of those changes were amendments to a little-known and little-used FBI instrument called National Security Letters.

National Security Letters allow the FBI and other agencies to issue businesses and institutions requests for private data on citizens, including financial transactions and communications records, regardless of whether or not they are even suspected of any crime, and to hold that data indefinitely. One of the most worrying aspects of the letters are their non-disclosure clause, which not only prohibits recipients from disclosing the contents of the letter, but even the fact that they have received a letter at all.

The letters were first introduced as an amendment to the 1978 Right to Financial Privacy Act. Originally requiring issuing agencies to give advance notice of the request and allow the subject an opportunity to challenge it, the instrument was amended in 1986 to allow letters to be issued without advanced notice in cases where the FBI had “specific and articulable facts giving reason to believe that the customer or entity whose records are sought is a foreign power or an agent of a foreign power.” At the time, compliance with the letters was voluntary and recipients frequently declined to disclose the information. In the 1980s and 1990s, amendments were passed compelling compliance and allowing the FBI to issue letters even when the subject of the request was not under direct investigation.

With the passage of the Patriot Act, however, the scope of the program was expanded aggressively. Under the Act, the FBI was granted the power to issue National Security Letters against US citizens, even if those citizens were not suspected of any criminal activity. For the first time, other agencies were also granted the ability to issue the letters. And, unlike other legal instruments for obtaining information like a warrant or subpoena, the letters require no judicial approval before being issued.

Despite the incredible frequency with which the letters were issued after the Patriot Act—with the FBI alone averaging 50,000 letters per year between 2003 and 2006—it was not until 2004 that the program was challenged in the courts, with Judge Victor Marrero of the Southern District of New York finding that the National Security Letters violated both the First and Fourth Amendments.

The case revolved around Nicholas Merrill, the owner of an Internet Service Provider who was issued a National Security Letter by the FBI requesting 16 categories of information about certain customers, including email addresses, billing information, and a number of other pieces of data that remain classified to this day.

Refusing to comply with the letter, Merrill entered a years-long legal battle that included the FBI's dropping of its request for the information, but still insisting that he could not publicly speak about the letters or even identify himself as the recipient.

It was not until August 2010 that the FBI partially lifted the gag order, allowing Merrill to be identified for the first time. Shortly thereafter, he appeared on the BoillingFrogsPost podcast with Sibel Edmonds and Peter B. Collins to discuss his ordeal:

In 2007, the results of an internal FBI audit of the National Security Letters program was made public. The audit only covered 10% of the bureau's national security cases, yet still uncovered over 1000 instances where the FBI broke their own regulations, including dozens of cases where they had requested information that they were not legally allowed to ask for.

An Inspector General report released that March examined a sample of FBI case files and found that there were more National Security Letters issued than there were in the Bureau's reporting database. The report concluded that the FBI had likely grossly misled the public about how many such letters had been issued. In response, FBI director Mueller admitted a “pattern of abuse of authority” within the Bureau that cast doubt on the ability of the FBI to guard the public trust.

Also in 2007 it was revealed that the FBI have issued letters requesting financial records of American companies on behalf of the Defense Department and even the CIA, in direct contravention of its mandate to conduct investigations and operations exclusively overseas. The DoD letters do not have the same mandatory compliance restrictions as FBI letters, but when they were revealed in an ACLU lawsuit it was discovered that the letters were coercive and often did not make it clear that compliance with the requests was voluntary.

One of the most heartening things about the National Security Letters is that time and again, companies and institutions that have challenged the letters have succeeded in getting the FBI to back down. In Nicholas Merrill's case, the Bureau dropped its request and partially lifted the gag order preventing him from speaking about it. In 2006, the FBI dropped a request for information regarding computer usage at a Connecticut library and withdrew a gag order on its recipients after being challenged in court. In 2008, the Electronic Frontier Foundation and the ACLU succeeded in getting the FBI to withdraw a request it had made for records pertaining to a user of the Internet Archive.

Herein lies the hope inherent in so many of these inherently tyrannical abuses of government power: that when forced to defend their position in the light of public scrutiny, the tyrants will readily turn tail and run. But, as Sibel Edmonds goes on to point out in that BoilingFrogsPost interview with Merrill, what does it say about the hundreds of thousands of national security letter recipients who did nothing to challenge this practice? Surely nothing can be a more damning indictment of a society that once thought of itself as a beacon of liberty for the world that fewer than one in fifty thousand are willing to stand up and challenge the presumed authority of an agency, and a process, that is clearly and admittedly out of control.

So in this microcosm of the national security letter we can see the macrocosm of the police state control grid as a whole. If it is true that for evil to triumph, good men and women must do nothing, than all it takes to defeat that evil is for the good men and women to simply say no and hold their ground.

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