National security letters put privacy at risk
By ROBYN E. BLUMNER
Published November 13, 2005
Thanks to some energetic reporting by Barton Gellman of the Washington Post, we now know that our privacy is toast. Gellman has figured out that the government is issuing 30,000 national security letters a year, 100 times what had been typical before the USA Patriot Act.
National security letters are a form of domestic surveillance. They are orders given to public libraries, Internet service providers, banks, hotel-casinos and other businesses to turn over "transactional records" of their patrons and customers. That means, whom you e-mail, where you browse on the Web, your bank account activity, how much you made or lost gambling and dozens of other examples.
Under the Patriot Act, there no longer has to be evidence that individuals have terrorist ties before their records can be demanded. It's enough that the records are "sought for" a terrorist investigation, which means whole databases can be fair game. And the FBI issues the letters internally, upon its own say-so, without judicial oversight.
At one time, when civil liberties mattered at the Justice Department, any records collected through national security letters would be expunged if deemed no longer valuable. But former Attorney General John Ashcroft changed that. Now, the information is indefinitely saved in federal databanks and may be shared widely among federal agencies.
If this makes you uncomfortable, it should. The sensible rules that used to require real evidence of criminality before the government could track your private activities are gone, replaced by a "trust us not to abuse our power" policy.
This, from the agency that brought you the famous Dr. Martin Luther King Jr. sex tapes and the 2003 confidential memorandum asking local law enforcement to monitor antiwar activists.
The Justice Department likes to counter concerns about national security letters by claiming that there have been no substantiated findings that the FBI has abused its powers under the Patriot Act.
But there's a good reason for that. Everyone who receives an FBI order to hand over records under the Patriot Act is gagged for life from disclosing it. Innocent Americans who have had their privacy invaded never find out. It's mighty hard to complain under those circumstances.
The Post points to a perfect example of how broadly the FBI's inquiries can sweep. In 2003, there was intelligence - wrong, as it turns out - that Las Vegas might be the target of a New Year's Eve terror attack. In response, the FBI set out to identify all of the estimated 1-million people who stayed in Las Vegas over a two-week period. The agency reportedly used national security letters among other tools to gather data on hotel guests - information that, to this day, is retained in federal computers.
Las Vegas, the town that promises its visitors the utmost discretion, became an open book for an FBI fishing expedition.
This is a very rare example of a national security letter coming to public light. Normally, not even Democrats in Congress can get information on their use. For years, Sen. Patrick Leahy, D-Vt., has submitted pointed questions to the Justice Department asking for details on national security letters and the storage and dissemination of the records obtained through them, all to no avail.
Such stonewalling has allowed this major tool of domestic surveillance to escape scrutiny and debate. The Patriot Act's Section 215, the so-called "library provision" that allows the government to scoop up library records, among others, has garnered far more outrage and attention. But at least under Section 215, the FBI has to go before a judge first.
When FBI director Robert Mueller testified before the Senate Judiciary Committee on the Patriot Act in April, he said, "We have been fortunate not to have used 215 because we have had the cooperation of the libraries to date."
Cooperation? Libraries and librarians have been at the forefront of objecting to any compromise of their patrons' privacy. What I suspect Mueller didn't say is that the FBI hasn't had to use Section 215 since it had national security letters to wrench information from libraries. Mueller confused cooperation with legal coercion.
Currently, a federal appeals court is considering a national security letter case involving Library Connection Inc., a Connecticut company that holds the digital records for dozens of the state's public libraries. The issue before the 2nd U.S. Circuit Court of Appeals is whether Library Connection - whose identity was revealed by the Post's stellar investigative work - has a First Amendment right to get out from under the gag order and go public. It wants to be able to alert Congress and the rest of us to the dangers of the FBI's unchecked snooping, particularly during the current debate over the Patriot Act's reauthorization.
The Patriot Act is expected to emerge from conference this week. If the Senate version is left largely intact, some vital rebalancing of FBI surveillance power will be added. But that won't be true of national security letters. They will remain essentially unchanged - a unilateral and virtually unfettered tool for the government to track the everyday activities of innocent Americans and hold that information forever. At 30,000-per-year and counting.