The obsessive secrecy provided by the Patriot Act for certain domestic surveillance activities suffered a severe blow yesterday, as a federal judge struck down provisions of the Act that provided for expansive and secretive use of so-called "National Security Letters" (NSL) to obtain phone and email records.
NSLs predate the Patriot Act, and were originally used by the FBI in relatively limited circumstances for counterterrorism or counterintelligence operations. NSLs are warrantless demands for information by the FBI that carry the legal weight of a search warrant without the usual judicial review required for the issuance of a search warrant. They are frequently used, ironically, to support FISA warrant applications. Provisions in the Patriot Act considerably loosened the standards for the issuance of NSLs, and their use by the FBI has correspondingly exploded since the passage of the Act in 2001.
Prior to the Patriot Act, there had to be "specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is a foreign power or an agent of a foreign power." An NSL also required a senior FBI official to sign off on it. No longer.
The Patriot Act lowered the threshold to "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities." It also allowed the NSLs to be approved at the field office level. The changes allowed the FBI to cast a much broader net, since the information at issue only needed to be relevant to an authorized investigation - someone with no more than a phone or email contact with a suspicious individual was now a potential target. Internally, the FBI expanded the concept of "investigation" to include activities that had previously been considered "preliminary."
Not surprisingly, NSL information requests expanded from 8,500 in 2000, before the Patriot Act, to 47,000 in 2005 - a number the Department of Homeland Security (DHS) Office of the Inspector General (OIG) considered to be underreported by almost 9,000 requests. One NSL may contain multiple information requests, but the trajectory was clear.
Most controversial of all, the Patriot Act made it illegal for ISPs or Telcos receiving a request to reveal to the object of the request that the government had made an information request at all, even if the object of that request pro-actively asked.
The American Civil Liberties Union (ACLU) sued on First Amendment grounds on behalf of ISP "John Doe" back in 2004, and after Judge Victor Marrero struck down the provisions covering NSLs, Congress rewrote the offending portion of the legislation. Judge Marrero is still not satisfied.
"The risk of investing the FBI with unchecked discretion to restrict such speech is that government agents, based on their own self-certification, may limit speech that does not pose a significant threat to national security or other compelling government interest," Marrero said.
There are two reasons for Marrero's discomfort - one is the clear and negative implication for the fundamental right of freedom of speech, and the other is the complete lack of judicial oversight for NSLs. The Act as it is now essentially requires judges to take the FBI at its word, which undermines the constitutional principal of the separation of powers between the judicial and executive branches of government.
The Justice Department has not yet decided whether to appeal the decision or not.
Burke Hansen, attorney at large, heads a San Francisco law office