The Expanding Use of National Security Letters

Author’s Note:  this article was originally published on over a year ago and may contain outdated information.  I am posting it here now because it is no longer available on that website (more about that here).  I will be posting a couple additional articles that I wrote for Newsbud that are also no longer available there.

Katie Aguilera

Last month, the US senate came up two votes short of the necessary number needed to pass an amendment to a criminal justice spending bill that would have expanded the type of information that can be obtained with the use of a warrantless surveillance technique known as a national security letter. The Federal Bureau of Investigation has been pushing for this expansion for some time, and after the June 12th Pulse Nightclub shooting in Orlando, Florida, many expected the amendment would pass. It will likely be voted on again, as Senator Mitch McConnell (R-KY) has already filed to bring the measure back before the Senate.

A national security letter is a demand by law enforcement conducting national security investigations for information from companies about an individual’s use of services. National security letters, or NSLs, have been issued to libraries, internet service providers, telephone companies, even doctors and insurance companies, among others. The information sought might include records of internet usage, records of telephone calls, and banking and credit information. NSLs do not require approval from a judge, and they forbid the recipient from disclosing any details about the request to the public or the individual the requested information pertains to.

The use of national security letters (NSLs) by law enforcement to obtain data has greatly increased since the passing of the Patriot Act in 2001, and it shows no sign of slowing with this renewed push to expand the type of information that can be obtained with the use of NSLs. According to this transparency report on the use of National security authorities, 12,870 NSLs were issued in 2015. It is unlikely the FBI would not take advantage of expanded NSL capabilities, after all, they have demonstrated a willingness to abuse the NSL system already, in multiple cases.

As reported by the Intercept, the FBI continued to issue NSLs requesting data “’electronic communications transaction records’ — email metadata and header information, URL browsing data, and more,” even though, in 2008, President Bush’s Office of Legal Counsel advised that the FBI “was not entitled to anything more than basic subscriber information, including name, address, and toll billing records.”

According to a letter to the Senate judiciary committee signed by many civil liberty groups and businesses, an Office of the Inspector General audit from 2007 “found that the FBI illegally used NSLs to collect information that was not permitted by the NSL statutes.” It also points out that data collected from NSL demands was stored indefinitely, used to access information not related to any FBI investigation, and “NSLs were used to conduct bulk collection of tens of thousands of records at a time.”

The letter argues against the amendment, writing that the proposed expansion of the information susceptible to NSLs “would dramatically expand the ability of the FBI to get sensitive information about users’ online activities without court oversight. The provision would expand the categories of records…that the FBI can obtain using administrative subpoenas called NSLs, which do not require probable cause.”

The letter goes on to say, “the new categories of information that could be collected using an NSL…would paint an incredibly intimate picture of an individual’s life. For example, [they] could include a person’s browsing history, email metadata, location information, and the exact date and time a person signs in or out of a particular online account.”

In the aftermath of various terrorist attacks like the Paris attacks of November 2015 and the recent Istanbul airport attack, as well as the San Bernardino attack last December and the mass shooting in Orlando last month, the rhetoric has grown increasingly alarmist about the possibility of more frequent and more harmful “lone-wolf” attacks. Proponents of increasing the reach of NSLs argue that such expansion will aid in identifying potential threats before they can attack. Senator John McCain stated on the floor of the Senate, “right now, there are unfortunately young people in this country that are self-radicalized, and what vehicle is doing the self-radicalization? It’s the internet.”

This argument is in spite of the fact that the Chairman of the Intelligence Committee, Senator Richard Burr (R-NC) admitted before the Senate vote on the NSL expansion amendment that it “would not have prevented the mass shooting in Orlando, or the attacks in San Bernardino in December of last year.” It also disregards the fact that FBI Director James Comey stated the FBI had conducted a full investigation into the Orlando, Florida shooter, Omar Mateen, under current laws, prior to the attack. He is quoted in this Bloomberg article as saying:

“We had the resources to do a 10-month investigation that based on my review was quite complete involving surveillance, sources, a review of electronic records, international records,” Comey said Monday, adding that agents recorded conversations with the shooter and reviewed ‘transactional records from his communications.’”

This raises the question, exactly how will expanding the use of an information gathering tool that is already arguably unconstitutional, and demonstrably ineffective, help to prevent future attacks? Ultimately, what would this expansion of the FBI’s ability to profile individuals as potential future threats based on data collected without a warrant accomplish?

It may very well present a number of opportunities to identify potential target sites for internet censoring such as is already being called for in the European Union. It also may effectively stifle transparency as NSLs are used to obtain information on journalists, and their sources. Consider this report in the Intercept last week on the FBI’s classified rules, leaked to the Intercept, for the use of NSLs to obtain information on journalists. As this Freedom Of The Press Foundation article states:

“First, the rules clearly indicate—in two separate places—that NSLs can specifically be used to conduct surveillance on reporters and sources in leak investigations. This is quite disturbing, since the Justice Department spent two years trying to convince the public that it updated its ‘Media Guidelines’ [found here] to create a very high and restrictive bar for when and how they could spy on journalists using regular subpoenas and court orders. These leaked rules prove that the FBI and DOJ can completely circumvent the Media Guidelines and just use an NSL in total secrecy.”

This will likely have the effect of intimidating and discouraging potential sources and whistleblowers for fear that NSLs demanding email and phone records will expose them, subjecting them to the Obama administration’s aggressive targeting of whistleblowers. If law enforcement can obtain such detailed information on an individual without any judicial oversight, people will be much less likely to risk speaking out on crimes committed by the government. This suggests that, rather than protecting the people from acts of terrorism, the use of national security letters ultimately serves to protect the Federal government from scrutiny.

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