Published June 15, 2007
One of the most pernicious results of the USA PATRIOT Act has been the use - and abuse - of national security letters. The authority given the FBI to issue national security letters, which are like administrative subpoenas, was established in the late 1970s, but their use changed dramatically after passage of the Patriot Act. Previously, NSLs were used by the FBI to gain access to financial records of individuals suspected in foreign intelligence cases. There was an approval process for issuing NSLs and a standard of reasonable cause for delving into private records of individuals residing in this country.
Passage of the Patriot Act in 2001, however, changed all that by lowering the standard for the issuance of NSLs and essentially changed their purpose from investigation of suspected spies or terrorists to casting a broad net to data mine lists as a preventative tool against possible terrorist activities. And in so doing, the NSLs became a secret tool of the FBI for gathering private information about the lives of Americans.
In March of this year, the Justice Department's Inspector General issued a report which revealed a disturbing picture of the abuse by the FBI's private and secret investigation of thousands of Americans through the NSLs. The report substantiated what I had suspected from research I had been doing on the NSLs last year, but it was much worse than I had imagined.
NSLs were previously used when a trail of evidence pointed to their need in individual cases, but their use has become widespread after passage of the Patriot Act. Conservatively, the IG reported that over 140,000 NSLs were issued over a two-year period ending in 2005 to third party entities (compared to 2,000 NSLs issued in 2000). In the past, the discretionary use of NSLs was controlled by a requirement that they be approved by ranking officials at FBI headquarters in Washington, but now the letters can be issued by special agents in field offices.
As a result, the FBI can now issue NSLs to get private information about virtually anyone, including American citizens, with minimal checks and balances to justify their use. The letters are being used to gather information from third parties (financial institutions, telecommunications companies, internet providers, credit companies) on individuals who are not necessarily connected to suspected terrorists or agents of foreign powers. That is, according to the inspector general's report, the FBI seems to be casting a wide net to obtain database information from companies for the purpose of ferreting out suspects from those database lists.
In other words, rather than targeting individuals based on suspicious activities and evidence, the NSLs are now being used to get entire lists from, say, telephone company databases to see who may be making overseas calls to places like the Middle East or other Muslim countries. And of equal concern, all the data from such searches are being stored in government files so that private information of individual users is now part of the government's records. Add to this, records of financial institutions, electronic communications, and credit records to see how broadly the FBI can delve into the private records of Americans.
While gag orders have always been part of the NSLs as a way of not tipping off suspects that they were being investigated for their suspicious activities, the current climate of secrecy connected with the ways the NSLs are being used is troubling. By demanding large database records, the FBI - unwittingly or not - gathers unwarranted private information about American citizens who will never be informed that they're under the same investigative shadow as someone who may be a terrorist suspect.
Because recipients of NSLs cannot reveal to their subscribers that their personal records have been subpoenaed by the government and because the NSL net is so wide now, the NSLs have taken on a cloak of secrecy that previously didn't exist. Despite the guaranteed right of privacy that has been one of the cornerstones of American democracy, the Patriot Act precludes this right in the matter of NSLs.
The use of NSLs, under the right conditions and with proper controls, can serve as a useful tool against espionage and terrorism. But under the present conditions given to NSLs by the Patriot Act, they present a danger to the fundamental right to privacy of American citizens. The insistence on secrecy and silence and the invasion of the privacy of American citizens run counter to principles of democracy in America.
The ACLU seems to be the only organization challenging the post-Patriot Act use of national security letters. It's time the nation's civil rights community, which of course includes the JACL, got serious about this and pressed Congress to re-examine the Patriot Act and repeal the broadened authority given to the NSLs.
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