by Eric Martin
Adam Serwer highlights only the most recent encroachment on civil liberties undertaken by an executive branch that is, in this regard, as avaracious in its appetites with Democrats in charges as with Republicans:
Civil libertarians have been trying to add more restrictions to the FBI's National Security Letters since their use exploded after the attacks of September 11th. NSLs, which allow the government to obtain private records from commercial and financial institutions without a warrant as long as they deem them "relevant" to an investigation--with a gag order that stops companies from mentioning they've received them for good measure. Internal Justice Department reports have found NSLs are subject to widespread abuse. Last year, Senator Russ Feingold along with some Democrats in the House tried to rein in NSLs by requiring that the FBI show the information is somehow relevant to terrorism or espionage, but they were stymied by members of their own party.
Today, the Washington Post reports that the Obama administration wants Congress to expand the type of data that can be gained through the use of National Security Letters.
The administration wants to add just four words -- "electronic communication transactional records" -- to a list of items that the law says the FBI may demand without a judge's approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user's browser history. It does not include, the lawyers hasten to point out, the "content" of e-mail or other Internet communication.
This is on the heels...of the administration blocking reasonable restrictions on what has objectively been widespread misuse of NSLs...Having acted irresponsibly with the surveillance power it already has, and blocked reform that would have made the government more accountable, the Obama administration now wants even more power to violate the privacy rights of American citizens. When it comes to national security, there's nothing like failed government performance to justify giving the government more power.
There are two points worth emphasizing with respect to the above:
First, "probable cause," the standard required for law enforcement to get a warrant to gain access to these materials, is by no means an onerous threshold. It is quite low, and hardly a barrier.
Second, even if there is a pressing need to do away with the probable cause test (and it is unlikely that there is), there should at the very least be post hoc review to ensure that there has not been abuse of this rather extraordinary, plausibly unconstitutional, power of search and seizure.
Under the current NSL protocol, not only is external review and reprimand absent, but the companies that are being forced to turn over the applicable records are forbidden from making this fact public.
Wasn't warrantless wiretapping illegal? How is this different?
Posted by: Julian | July 30, 2010 at 11:31 AM
It's the new law!
Presumably, subject to SCOTUS challenges.
Posted by: Eric Martin | July 30, 2010 at 11:38 AM
I'm glad you wrote about this. I had gathered a couple of links to write about it myself.
Get a warrant. It isn't that hard if you have any legitimate reason to suspect someone.
Just get a warrant.
Posted by: Sebastian | July 30, 2010 at 12:02 PM
And, if there is still going to be some kind of 'exigent circumstances' exception, impose a strict liability standard for compensatory damages including a mandatory award of attorney's fees for bad calls by the feds.
Posted by: McKinneyTexas | July 30, 2010 at 01:03 PM
A couple of points here, based on my "IANAL" understanding of the issues.
First, I believe the "gag order" aspect of NSLs has been ruled to be unconstitutional and has been removed.
Second, I don't think the context for this stuff is criminal investigations. IIUC, it's intelligence gathering and terror investigations. So, probable cause is not necessary in order to obtain a warrant, the FBI (or whoever) merely has to assert that the proposed target of the surveillance and/or the communications they want to capture are relevant to an investigation.
Third, the stuff they want to extend NSLs to are email and web request headers, which are generally held to be analogous to pen register type records of phone calls. In other words, the number you called and when you called, but not the content of the conversation. As such, fourth amendment guarantees arguably (and likely) do not apply.
We already have FISA as a regime for authorizing surveillance for foreign intelligence gathering and terror investigations. The FISA court is *extremely* deferential to requests for a warrant. And FISA already supports an 'exigent circumstances' exception, where US citizens and legal residents can have their communications monitored for three days without a warrant, and non-US persons for *a year*.
Last but not least, NSLs are known to have been flagrantly and widely abused. FBI agents have, literally, written "NSLs" on Post-It notes to demand materials from phone companies and ISPs, and in many cases the materials they have requested were materials they had no authority, under any regime, to ask for.
NSLs suck.
What Seb and others have said here - just get a freaking warrant. For the purposes at hand here, the bar for a warrant is extraordinarily low, and the FISA courts almost literally never deny warrant requests.
Posted by: russell | July 30, 2010 at 01:22 PM