Everything you ever wanted to know about National Security Letters… But were afraid to ask

Everything you ever wanted to know about

National Security Letters…

But were afraid to ask.

NATIONAL SECURITY LET-TERS

A Historical Background

What is a National Security Letter?

From FBI website:

“A letter request for information from a third party that is issued by the FBI or by other government agencies with authority to con-duct national security investigations.”

And…

There is a nondisclosure, or “gag” order attached

An NSL requires no judicial oversight

The Birth of National Secu-rity Letters

1986 Amendment to the Right to Finan-cial Privacy Act (RFPA)

Allows the FBI to obtain financial records and personal information without ad-vance notice as a part of terrorism or espionage investigations

Increased Legal Authority for NSLs

Electronic Communications Privacy Act (ECPA)

Telephone, e-mail, billing records, and subscriber information

Amendment to the Fair Credit Report-ing Act (FCRA)

Consumer Credit History Information

USA Patriot Act

•Passed October 2001

•Meant to expand resources in identifying threats to national security

•Entities considered “relevant” can be in-vestigated

•Approval authority of NSLs decentral-ized

Constitutionality of NSLs Challenged in Court

Doe v. Ashcroft

Doe v. Gonzales

• Violates 1st and 4th Amendment Rights

In the meantime…

Patriot Act up for renewal USA Patriot Act Improvement and

Reauthorization Act of 2005 Clarifies:

1. NSL recipient may disclose receipt when seeking legal counsel

2. Non-disclosure order does not automati-cally attach to NSL

3. Judicial review of non-disclosure require-ment accompanying NSL

Does go to a Higher CourtMay 2006

Judge Cardamone writes concurring opinion:

“a ban on speech does not fit comfortably with the fundamental rights guaranteed American citizens.”

• The U.S. 2nd Court of Appeals hears Doe v. Ashcroft and Doe v. Gonzales

• Returned to lower courts due to revisions made to the Patriot Act earlier in the year

The Department of Justice Gets In-volved

• As a part of the Patriot Act Reauthoriza-

tion the Office of the Inspector General is required to investigate the use of NSLs

• March 2007 report states that the FBI violated regulations in use of National Security Letter authority

ALA on NSLs

NSLs violate 1st Amendment Rights

• ALA is against government suppression of the right to intellectual freedom

• Urges Congress to enact greater oversight of NSL usage and eliminate “gag” order provision

Library Action!

Educate community Destroy internet access logs daily Post privacy-loss warning signs

What will you do to protect your freedom?

OVERVIEW OF AVAILABLE MATERIAL ON NATIONAL SECURITY LETTERS

National Security Letters in Foreign Intelli-gence Investigations: Comparison of National Security Attributes

Addressees and Certifying Officials Purpose, Standards, and Information

Covered Confidentiality Judicial Review Dissemination Liability, Fees, and Oversight

Department of Justice Inspector Gen-eral’s Report

Review NSL issuance 2003-2004, and 2005-2006

100 FBI employees from headquar-ters and 50 FBI employees from na-tional field offices interviewed

Examined FBI’s NSL tracking data-base

Department of Justice Inspector Gen-eral’s Report

NSLs reported by FBI (by year): 2000: 8,500 NSLs 2003: 39,000 NSLs 2004: 56,000 NSLs 2005: 47,000 NSLs

The Inspector General found these numbers to be flawed:

Inaccurate informa-tion in database

Information not en-tered consistently into database

Some information from the database was missing

Department of Justice Inspector Gen-eral’s Report

Errors were made be-cause:

FBI gathered incorrect information

Gathered some infor-mation without a NSL

Mistakes in letters, causing confusion

Violations: Improper authoriza-

tion of NSLs Improper requests of

information Unauthorized collec-

tions of information

Department of Justice Inspector Gen-eral’s Report

Recommendations Create control files for signed copies of

letters Improve NSL database Better guidance over issuance of NSLs

from FBI field offices Tagging of information from NSL re-

quests-learn how and when the infor-mation is used in criminal proceedings

FBI’s Response to Inspector General’s Report

NSLs valuable after 9/11 as an inves-tigative tool

Director Robert S. Mueller has or-dered corrective measures to be taken Stronger internal controls Improve oversight of NSL approvals Expedited inspection

“Library Group Tells of A Gag Order by the FBI”

Library Connection-central computer system in Hartford, Connecticut

American Civil Liberties Union (ACLU) v. Gonzales Originally filed as Doe v. Gonzales Peter Chase (Library Connection Vice

President of Board of Directors): “John Doe”

Other Library Connection members: George M. Christian, Barbara Bailey, Janet Nocek

ALA’s Resolution on the Use and Abuse of National Security Letters

ALA’s stance Want to protect

privacy rights of patrons and em-ployees

Believe free thought should be protected

Resolutions Condemns use of

NSLs for obtain-ing library records

Wants Congress to propose pro-tective reforms

National Security Letters Reform Act of 2007

Introduced to the House of Repre-sentatives by Rep. Jerrold Nadler (NY) on July 26, 2007

Proposes several procedural protec-tions for NSLs

The act was referred to the Sub-committee on the Constitution, Civil Rights, and Civil Liberties on Sep-tember 10, 2007

A FEW SCARY THINGS ABOUT NA-TIONAL SECURITY LETTERS…

Your privacy is at risk.

You don’t have to be connected to a terrorist investigation to have an FBI file.

Your records can be retained indefi-nitely.

Your information can be shared within the government and with pri-vate businesses.

There are no checks and balances.

If you’re issued one, you can’t talk about it.

Recipients cannot disclose the fact that they have received an NSL or discuss it with anyone other than a lawyer.

Library Connection members were not even allowed to attend their own court case anonymously because of the gag order.

They’re easy to misuse.

Justice Department audit found nu-merous misuses of NSLs.

FBI internal audit found more than 1,000 instances of misuse.

Businesses are not allowed to chal-lenge NSLs for at least 1 year.

The FBI has been compensating phone companies for access to records.

And the data is easy to misinterpret.

How are libraries affected?

Library Connection court case

ALA’s Resolution on the Use and Abuse of National Security Letters

But don’t worry, it’s not all bad news. In September

2007, a federal judge ruled that NSLs were uncon-stitutional.

National Security Letters Reform Act of 2007 has been proposed.

“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

-Benjamin Franklin