Unconstitutional National Security Letters
Annex from the Testimony at an Oversight Hearing on sections 206 and 215 of the USA PATRIOT Act of 2001 Before the Subcommittee on Crime, Terrorism and Homeland Security of the House Judiciary Committee, by the American Civil Liberties Union (ACLU), April 28, 2005,
submitted by Gregory T. Nojeim and Timothy H. Edgar.
Section 505 of the Patriot Act expanded the government’s authority to use National Security Letters (NSL?s) to seize information from businesses and others, with no judicial approval. Prior to the Patriot Act, the government could use NSL?s to obtain records about alleged terrorists or spies ? people who were thought to be “foreign powers? or their agents. Financial, travel and certain Internet Service Provider (ISP) records are accessible under the NSL authority. Section 505 changed the law to allow the use of NSL?s to obtain such records about anyone without the limitation that they be agents of foreign powers. In the Intelligence Authorization Act of 2004. Congress further expanded the NSL letter authority to permit seizure of casino and other records.
On a date that the government maintains must be kept secret for reasons of national FBI served an NSL on an ISP the identity of which the government also claims secret for reasons of national security. Through its NSL authority at 18 U.S.C. government can seek certain sensitive customer records from ISPs ? including may be protected by the First Amendment ? but the ISP can never reveal that with an NSL, and nothing in the statute suggests that the NSL can be challenged behalf of the ISP and itself, the ACLU challenged the statute as amended by violation of the First and Fourth Amendments because it does not impose adequate the FBI’s authority to force disclosure of sensitive and constitutionally protected because its gag provision prohibits anyone who receives an NSL from disclosing and to any person even the mere fact that the FBI has sought information.
On September 28, 2004, Judge Victor landmark decision striking down as unconstitutional court struck down the entire statute as rendering any use of the statute an abuse hundreds of such uses (1). It found that NSL?s that coerced immediate compliance opportunity to consult with counsel:
The form language of the NSL served upon [plaintiff ISP] Doe, preceded by an FBI phone call, directed him to personally provide the information to the FBI, prohibited him, his officers, agents and employees from disclosing the existence of the NSL to anyone, and made no mention of the availability of judicial review to quash or otherwise modify the NSL or the secrecy mandated by the letter. Nor did the FBI inform Doe personally that such judicial review of the issuance of the NSL or the secrecy attaching to it was available. The court concludes that, when combined, these provisions and practices essentially force the reasonable NSL recipient to immediately comply with the request.
In finding the statute unconstitutional under the Fourth Amendment, Judge Marrero referred repeatedly to the amendments made by Section 505. He noted as an example of the kind of abuse now authorized by the statute that it could be used to issue a NSL to obtain the name of a person who has posted a blog critical of the government, or to obtain a list of the people who have email accounts with a given political organization. The government could not have obtained this information with an NSL prior to the Patriot Act amendment in Section 505, unless the blogger or the people with such accounts were thought to be foreign powers or agents of foreign powers. The court also cited Patriot Act Section 505 as a reason it struck down the statute on First Amendment grounds. The court determined that the tie to foreign powers ? eliminated by Section 505 ? “limits the potential abuse” of the statute and distinguishes it from other intelligence search provisions that retain the requirement of such a tie and include a statutory gag provision.
Because of the gag in 18 U.S.C. Section 2709(c), the government obtained a sealing order it has consistently used to suppress wholly innocuous information in the litigation. Until the court struck down the statute, the government prevented the ACLU from disclosing that it represented someone that had been served with an NSL, and from even acknowledging that the government had used a statutory power. The government has demanded that the ACLU redact a sentence that described its anonymous client’s business as "provid[ing] clients with the ability to access the Internet.” Ironically, the government even insisted that the ACLU black out a direct quote from a Supreme Court case in an ACLU brief: “The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’ Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.”
The gag in Section 2709 would effectively prevent an ISP (or its lawyers) from disclosing other abuses of Section 2709. For example, if the government was targeting someone because of their First Amendment activity, or if the ISP was being forced to turn over First Amendment protected information about associational activities, the gag would bar disclosure of this abuse.
(1) Doe v. Ashcroft, (04 Civ. 2614, S.D.N.Y. Sept. 28, 2004), at 63-64. The court concluded that hundreds of NSL?s had been requested by the FBI from October, 2001 through January, 2003, and hundreds must have been issued during the life of the statute. The government takes the position that even the number of NSL?s it issues cannot be disclosed for reasons of national security, though it has disclosed publicly to Congress a number of such uses. See, e.g. “H.R. 3179, The “Anti-Terrorism Intelligence Tools Improvement Act of 2003,” Hearings Before the Subcomm. on Crime, Terrorism, and Homeland Security of the House Comm. on the Judiciary, 108th Cong. (2004) (statement of Thomas J. Harrington, Deputy Assistant Director of the FBI Counterterrorism Division).