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The FBI's National Security Letters - America's Shadow Judiciary

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A dramatic increase in the number of National Security Letters (NSLs) issued by the FBI prompted two Democrat lawmakers to question the validity of the letters and requested Attorney General Eric Holder shed more light on the secretive program.

Watch San Diego 6 News segment here.

Congressmen Jerrold Nadler (D-NY) and David Cicilline (D-RI), both members of the House Judiciary Committee heard revealing testimony about wide-ranging surveillance tactics used by the FBI during Deputy Attorney General James Cole's appearance on February 4, 2014.

According to the latest figures, the FBI issued 21 NSLs in 2009, however that number spiked to 205 letters in 2010. While the numbers appear small the scope of the program has alarmed many civil liberties watchdogs.

For example, the NSLs give the FBI the power to compel all financial institutions, email and Internet providers, as well as phone companies, to turn over all documents on the targeted U.S. citizen ‘relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.’ However, unlike the Patriot Act, no judicial finding or review is necessary.

But it gets worse. The targeted individual is then slapped with a gag order and can only discuss the NSL with an attorney. Failure to keep the “secret” can result in jail. A case in point comes from a California telecommunication company which fought the U.S. government and won a lengthy court battle in the Northern District of California in March of last year.

Judge Illston’s opinion found that the nondisclosure provision contained in the NSLs burdened free speech well beyond Constitutional requirements. The judge also said the government failed to prove that NSLs alone were enough to claim national security was at risk, which mandated a blanket gag order on the defendant and counsel. Perhaps even more disconcerting was the fact that the NSL statute limited a court’s review of the FBI practice. (More info on the case here)

Attorney General Holder, along with the FBI promptly appealed the case and no new information is available.

Conversely, Under the Bush years, the American Civil Liberties Union (ACLU) filed two NSL cases: Doe vs. Ashcroft and Doe vs. Gonzales challenging the legality of the NSLs under the 1st and 4th Amendments and won, unfortunately those success haven’t been expanded under the Obama administration..

The GAG orders continue

NSLs are issued at the sole discretion of the FBI and require the AG to approve the intrusive surveillance letters. Typically or in the past the FBI used similar letters (nondisclosure agreements) to combat organized crime..

But alarm bells rang at the Feb. 4 Judiciary Committee hearing when Scheller College Professor Peter Swire, who was designated by the Obama administration to look into civil rights violations, shared his Constitutional concerns with the committee. “The gag order or nondisclosure agreements in the criminal world cases (like) an organized crime investigation, the nondisclosure orders are issued for 45-60 days. We found out that NSLs are either permanent or come up for review for the first time in 50 years.” (Testimony here) This practice all but ensures that any governmental misconduct will go unnoticed, while putting extraordinary pressure on recipients of the NSL.

The federal government's domination of nearly every form of America’s communications, also ensared Lavabit, an encrypted email service provider that once delivered NSA leaker Edward Snowden's secure emails. After receiving an NSL, Lavabit defied a Department of Justice demand to turnover its encryption key for secure users. As the feds targeted the secure email provider Lavabit shuttered operations rather than give up the encryption codes to its 400,000 subscribers. Lavabit’s founder, Ladar Levison, made the difficult financial decision based on ethical concerns for his clients. To watch the San Diego 6 News TV segment click here: http://www.sandiego6.com/story/lavabit-shuts-down-20131110)

Lavabit first gained the government’s attention in May 2013 after the National Security Agency scandal revealed the scope of government snooping. According to court documents, the feds demanded Lavabit turnover sensitive security codes under alleged, but unproven, violations of the Espionage Act and theft of government property.

The Texas-based company fought efforts by the government to disclose confidential information in the ensuing months of Snowden's revelations, but by mid-summer the federal prosecutors sought to hold the company owner, Levison in contempt for not cooperating with a government investigation. The search warrant revealed that the government demanded “all information necessary to decrypt communications sent to or from the Lavabit e-mail account [redacted] including encryption keys and SSL keys.” (A link detailed Lavabit story here)

Meanwhile, Chicago internet startup Empeopled, which filed an Amicus Brief in the Lavabit case, says web groups risk sabotaging the roots of democracy on the Internet before they really have a chance to take hold if they don’t work with the government on some of these issues. Empeopled founder, Aris Michalopoulos, said last week in a phone interview that he didn’t want to necessarily demonize the government, but wanted them to stay in line with the Constitution. “We would like to educate Internet users to police themselves otherwise the government will do it for us.”

Below is the letter sent to Attorney General Eric Holder

Dear Attorney General:

Over the past several months, the media has focused on Section 215 of the USA PATRIOT Act. Section 215 permits the government to obtain “any tangible thing” if there are “reasonable grounds to believe” the information sought is “relevant” to an investigation “to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”

Under this authority, the National Security Agency collects records on virtually every phone call made in the United States. We understand that the Federal Bureau of Investigation may also use Section 215 to collect telephone records on a case-by-case basis. Section 215, of course, requires the government to obtain the approval of the Foreign Intelligence Surveillance Court before it may demand these records from a communications service provider.

On February 4, 2014, at a full committee hearing of the House Judiciary Committee, we questioned Deputy Attorney General James M. Cole about a different investigative tool—National Security Letters, or “NSLs.”
NSLs permit the FBI to obtain, among other things, telephone records, email subscriber information, and financial transaction records that are “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” No judicial finding is necessary.

The Review Group on Intelligence and Communications Technologies noted “foreign intelligence investigations are especially likely to implicate highly sensitive and personal information and to have potentially severe consequences for the individuals under investigation.” The Review Group was “unable to identify a principled reason why NSLs should be issued by FBI officials when section 215 orders . . . must be issued by the FISC,”and therefore recommended that “all statutes authorizing the use of National Security Letters should be amended to require the use of the same oversight, minimization, retention, and dissemination standards that currently govern the use of section 215 orders.”

As we consider reforms to the government’s surveillance capabilities, it would be helpful to understand more about the interplay between Section 215 and NSLs. To that end, we ask the following questions:

•Presumably, anything that the government can obtain through an NSL it can also obtain through a Section 215 order from the FISA court. Given the overlap with Section 215, why are NSLs necessary?
• In what instances would the FBI choose to use an NSL instead of Section 215? In what instances would the FBI choose to use Section 215 instead of an NSL?
• In 2009, the Department of Justice reported that the FBI had made 21 applications for business records to the FISA court. In 2010, the number of requests jumped to 205. In a 2011 letter to Senator Patrick Leahy, FBI Director Robert Mueller explained, “over the last two years, the FBI has increasingly had to rely on business records orders to obtain electronic communications transactions records that historically were obtained with NSLs.”6 Why did the FBI shift from NSLs to Section 215? Does it still rely on Section 215 for these purposes? Does the FBI’s dependence on one authority or the other shift over time?

Although the government periodically reports certain aggregate numbers to the House Judiciary Committee, we require a side-by-side comparison of (1) the FBI’s use of NSLs, (2) the FBI’s use of Section 215, and (3) the NSA’s use of Section 215, which often generates leads for the FBI.

We therefore request that you provide, for all fiscal years from 2006 to the latest available reporting period, the following information:

• The number of NSLs issued by the FBI, the statutory authority for each such NSL, and the number of U.S. persons targeted by such NSLs;
• The number of times that the FBI has requested a Section 215 order from the FISA court, the number of such orders modified and granted, and the number of U.S. persons targeted by such orders;
• The number of “RAS-approved” selectors used by the NSA to query telephone metadata; the number of searches conducted with those selectors; and the number of times these queries generated a tip to the FBI.

Congressmen Nadler and Cicilline requested the Justice Department respond to the letter by March 7, 2014. In the meantime, civil liberties watchers are expected to continue their own court battles to restore the rule of law in America.

Email Kimberly: Kimberly.dvorak@hotmail.com

Tips? theKDreport.com

Link to story on San Diego 6 News: http://www.sandiego6.com/story/Kimberly_Dvorak-20130915

Past breaking news story: http://www.examiner.com/article/did-cia-and-state-department-run-illegal-arms-trafficking-benghazi-1

© Copyright 2014 Kimberly Dvorak All Rights Reserved.

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