National Security
Letters: A Blessing and a Curse
The
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
--The
Fourth Amendment to the Constitution of the United States
When the founders of our country
drafted the Constitution, many felt it was too vague in defining the natural
rights of its citizens, so they also created The Bill of Rights. The first ten
amendments to the constitution define and protect many of the very freedoms
that American colonists were being denied by the British monarchy prior to the
Revolution. Along with protecting personal property, and freedom, the document
gives clear definitions of the limits of the federal government’s ability to
invade their personal privacies of its citizens.
After the terrorist attacks on
September 11, 2001 on the Pentagon and the World Trade Center in New York, a
wave of panic that swept the nation. Six weeks after the attacks, President George
W. Bush signed the USA PATRIOT Act into law. Government officials and the media
painted the picture that the law was going to help protect us from future
attacks by identifying potential terrorists and their supporting organizations.
What the public was not told, however, was that the law gave the government
virtually carte blanche to invade the privacy of any individual they deemed a
potential threat.
One of the ways that federal law
enforcement agencies investigated people of interest was by sending a National
Security Letters (NSL) to independent organizations i.e.: phone companies, web
sites, and financial institutions to disclose all of their personal data and
information. At first glance, it may seem that this is not necessarily a
violation of a person’s civil rights; however, the fact that the letters were
sent without judicial approval, meaning no warrant was issued, and they
included a gag-order preventing the recipient from speaking to anyone about it,
even their legal counsel, is a direct violation of both the 1st and
4th Amendments.
The history of National Security
Letters dates back to 1978, when Congress passed the Right to Financial Privacy
Act (RFPA) in response to a U.S. Supreme Court ruling in United Stated v.
Miller which overturned a ruling made by a district court in which supported
the US Attorney’s right to subpoena a bank to release personal financial
records without prior approval from a court. The high court ruled:
There
is no legitimate “expectation of privacy” in the contents of the original
checks and deposit slips, since the checks are not confidential communications,
but negotiable instruments to be issued in commercial transactions and all the
documents obtained contain only information voluntarily conveyed to the banks
and exposed to their employees in the ordinary course of business. The Fourth
Amendment does not prohibit the obtaining of information revealed to a third
party and conveyed by him to Government authorities. The Act’s record keeping
requirements do not alter these considerations so as to create a protectable
Fourth Amendment interest of a bank depositor in the bank’s records of his
account. (US v. Miller 425 U.S. 435 [1976])
The
portion of the ruling listed above essentially set the precedent for the
legality and creation of the NSL, and further supported that the institution
had no responsibility to notify the customer that his records were being
requested, or released. Once the RFPA was passed, formal notice was given to
those whose records were being subpoenaed so they would have a legal avenue to
protest the release if they so desired. In the 1980’s the law was amended to
exclude the protection of the rights of individuals suspected of espionage,
terror suspects were never even mentioned.
Clearly the political climate of the
Cold War during the 1970’s played a major factor in the amendment, however,
they were issued quite sparsely. According to the Electronic Privacy
Information Center (EPIC), approximately 8500 NSLs were requested in the year
2000. From 2003-2005, however, 143,074 NSLs were requested. It seems strange that
there could be that significant of a threat contingent in the US and the
government had no prior knowledge of their presence. On the other hand, if they
did have knowledge that this number of people could be connected with terrorist
cells, why were they not investigating leads more aggressively before the
attacks? According to the American Civil
Liberties Union’s website, of these 143, 074 NSLs requested during 2003-2005,
there were “53 reported criminal referrals: 17 were for money laundering,
another 17 related to immigration, and 19 involving fraud—none related to
terrorism.” Nearly another 50,000 NSLs were issued in 2006, and resulting in a
total of one terror-related conviction. I understand the value of following
every lead, especially when people’s lives are at stake, but based on the
numbers, it certainly seems that the FBI needs to do a better job of qualifying
their leads before completely invading someone’s privacy.
To their credit, the Federal Justice
Department, aware of the FBI’s abuse of power, and extreme overuse of this
tool, launched official investigations through the Office of the Inspector
General to monitor how the agency was qualifying information about suspects
before requesting NSLs. After looking at the nearly 200-page report evaluating
the FBI’s performance in 2006, very little was clear. Most of their findings
were vague and inconclusive as there had not been enough time since their last
analysis to see marked change in the FBI’s actual practices. They did, however,
acknowledge the Bureau’s effort to implement better training for agents on how
to handle NSLs, and the creation of a new department, the Office of Integrity
and Compliance (OIC), dedicated to oversight and integrity related to information
gathering. At least in theory this should give some agents pause before jumping
to request an NSL early in an investigation. They also noted that the FBI,
internally, issued a new set of formal guidelines as to what constituted
probable cause for an NSL; unfortunately those specifics were all blacked out
of the report.
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| How the FBI Uses NSLs. |
The
vast majority of NSLs and approval ECs we examined in our random sample
complied with the Patriot Reauthorization Act certification requirement and FBI
Policy related to non-disclosure and confidentiality requirements (128)
They
still voiced great concerns after showing that possible violations to issuance
policy in 2006 alone was more than three times that in all of 2003-2005 and
that most did not provide “perfunctory or conclusory justifications for
invoking the confidentiality or non-disclosure agreements.” (160)
It is important to look at the history and
development of the use of NSLs so we can better understand their value to the
investigatory process, and not simply pass judgment on them as a just another
government abuse of power. I agree wholeheartedly with the Justice Department’s
assessment that continued development of staff to manage the execution of NSL
requests is imperative to ensuring all requests are justified. I also believe
it is necessary to audit the FBI’s internal Office of Integrity and Compliance
to protect both the agency and its agents from any potential statutory violations
that they may unwittingly encounter using NSLs to gather information during the
course of an investigation. This invaluable tool is gives law enforcement
agents the ability to connect the dots between criminal networks of all types.
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| Is this what we really want? |
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