Despite the post-Snowden spotlight on mass surveillance, the intelligence community’s easiest end-run around the Fourth Amendment since 2001 has been something called a National Security Letter.
FBI agents can demand that an Internet service provider, telephone company or financial institution turn over its records on any number of people — without any judicial review whatsoever — simply by writing a letter that says the information is needed for national security purposes. The FBI at one point was cranking out over 50,000 such letters a year; by the latest count, it still issues about 60 a day.
The letters look like this:
Recipients are legally required to comply — but it doesn’t stop there. They also aren’t allowed to mention the order to anyone, least of all the person whose data is being searched. Ever. That’s because National Security Letters almost always come with eternal gag orders. Here’s that part:
That means the NSL process utterly disregards the First Amendment as well.
More than a year ago, President Obama announced that he was ordering the Justice Department to terminate gag orders “within a fixed time unless the government demonstrates a real need for further secrecy.”
And on Feb. 3, when the Office of the Director of National Intelligence announced a handful of baby steps resulting from its “comprehensive effort to examine and enhance [its] privacy and civil liberty protections” one of the most concrete was — finally — to cap the gag orders:
In response to the President’s new direction, the FBI will now presumptively terminate National Security Letter nondisclosure orders at the earlier of three years after the opening of a fully predicated investigation or the investigation’s close.
Continued nondisclosures orders beyond this period are permitted only if a Special Agent in Charge or a Deputy Assistant Director determines that the statutory standards for nondisclosure continue to be satisfied and that the case agent has justified, in writing, why continued nondisclosure is appropriate.
Despite the use of the word “now” in that first sentence, however, the FBI has yet to do any such thing. It has not announced any such change, nor explained how it will implement it, or when.
Media inquiries were greeted with stalling and, finally, a no comment — ostensibly on advice of legal counsel.
“There is pending litigation that deals with a lot of the same questions you’re asking, out of the Ninth Circuit,” FBI spokesman Chris Allen told me. “So for now, we’ll just have to decline to comment.”
FBI lawyers are working on a court filing for that case, and “it will address” the new policy, he said. He would not say when to expect it.
There is indeed a significant case currently before the federal appeals court in San Francisco. Oral arguments were in October. A decision could come any time.
But in that case, the Electronic Frontier Foundation (EFF), which is representing two unnamed communications companies that received NSLs, is calling for the entire NSL statute to be thrown out as unconstitutional — not for a tweak to the gag. And it has a March 2013 district court ruling in its favor.
“The gag is a prior restraint under the First Amendment, and prior restraints have to meet an extremely high burden,” said Andrew Crocker, a legal fellow at EFF. That means going to court and meeting the burden of proof — not just signing a letter.
Or as the Cato Institute’s Julian Sanchez put it, “To have such a low bar for denying persons or companies the right to speak about government orders they have been served with is anathema. And it is not very good for accountability.”
In a separate case, a wide range of media companies (including First Look Media, the non-profit digital media venture that produces The Intercept) are supporting a lawsuit filed by Twitter, demanding the right to say specifically how many NSLs it has received.
But simply releasing companies from a gag doesn’t assure the kind of accountability that privacy advocates are saying is required by the Constitution.
“What the public has to remember is a NSL is asking for your information, but it’s not asking it from you,” said Michael German, a former FBI agent who is now a fellow with the Brennan Center for Justice. “The vast majority of these things go to the very large telecommunications and financial companies who have a large stake in maintaining a good relationship with the government because they’re heavily regulated entities.”
So, German said, “the number of NSLs that would be exposed as a result of the release of the gag order is probably very few. The person whose records are being obtained is the one who should receive some notification.”
A time limit on gags going forward also raises the question of whether past gag orders will now be withdrawn. “Obviously there are at this point literally hundreds of thousands of National Security Letters that are more than three years old,” said Sanchez. Individual review is therefore unlikely, but there ought to be some recourse, he said. And the further back you go, “it becomes increasingly implausible that a significant percentage of those are going to entail some dire national security risk.”
The NSL program has a troubled history. The absolute secrecy of the program and resulting lack of accountability led to systemic abuse as documented by repeated inspector-general investigations, including improperly authorized NSLs, factual misstatements in the NSLs, improper requests under NSL statutes, requests for information based on First Amendment protected activity, “after-the-fact” blanket NSLs to “cover” illegal requests, and hundreds of NSLs for “community of interest” or “calling circle” information without any determination that the telephone numbers were relevant to authorized national security investigations.
Obama’s own hand-selected “Review Group on Intelligence and Communications Technologies” recommended in December 2013 that NSLs should only be issued after judicial review — just like warrants — and that any gag should end within 180 days barring judicial re-approval.
But FBI director James Comey objected to the idea, calling NSLs “a very important tool that is essential to the work we do.” His argument evidently prevailed with Obama.
NSLs have managed to stay largely under the American public’s radar. But, Crocker says, “pretty much every time I bring it up and give the thumbnail, people are shocked. Then you go into how many are issued every year, and they go crazy.”
Want to send me your old NSL and see if we can set a new precedent? Here’s how to reach me. And here’s how to leak to me.
Photo: Rich Seymour/Getty
Is there a reason Comey hasn’t been arrested and thrown in prison for depriving hundreds of people of their constitutional rights, which is a felony?
Oh, right… who’s going to arrest him? Unindicted co-conspirator. Eventually we’re going to have to fix this problem where unreptentant career criminals go free because they have wormed their way into jobs like “FBI Director”
You should contact the American Association of Law Librarians. They have been revealing these NSF letters since Bush era. Library records are ones that law enforcement always go for and theym NEVER released
Does the intercept got a list of names or a number of orders.
The Feds clearly have WAY too much spare time on their hands.
FullAnon.tk
Every federal employee, …in the civil service or uniformed services…,” takes an oath to “…support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same…”
Yet here we have another example of them making false claims that their job is to protect the people, and the only way they can do that is to shred the Constitution.
I believe the oath was worded this way because a strong Constitution will protect the people. I also believe that if our civil servants and elected officials actually took this oath to heart, we would not now have a oligarchy plutocracy in charge of America. This is the enemy that our Constitution obliges our public servants to defend against.
That is where our accountability of their behavior must start. Once that is accomplished, all of the other challenges will fall in line and be easily overcome. Then we can truly have a People Led Democracy.
Over a year ago Glenn Greenwald said that he would release a list of those individuals whose 4th Amendment Rights were being denied by NSL’s. Why isn’t the Intercept quoting him in this article? This was supposed to be the “bombshell” in the Snowden Documents left to be revealed!
There is a hole in this you can drive a truck through. It says you can’t “disclose” the letter, an overt act. But it makes no statements about how or even if you have to secure it. “Gee your honor, it must have blown off my desk and out the window, what a shame. I had no idea the guy you were investigating would be having a picnic right below my window”.
NATIONAL SECURITY LETTERS shouldn’t exist. Period.
Duh!
If your appeal works don’t be too surprised when some tool lawmaker then suggests a “Froomkin Law,” something along the lines of “contributing to the delinquency,” aimed at those enticing leaks. It also seems quite probable certain news and social media sites, known for allowing copious public comments, might all have past NSLs in safes somewhere – requesting email/IP addresses for supposedly anonymous usernames…
Wake up people, Democrats or Republicans,Tories or Labor. Liberals or Conservatives it’s two sides of the same evil coin it’s called Fascism. So the next time a politician asks for your vote, support or money just say no & vote for an independent candidate. Send a message they can’t ignore & will understand ! ! Both parties have been complicit in this criminal activity. Democrats & Republicans don’t decide elections Independent voters do so now is the time to elect independent candidate ! !
Money in politics equals corruption, reduce the money you reduce the corruption ! We don’t need the worst politicians money can buy, we need politicians that money can’t buy ! It’s time to remove the Corporate Congress from office & take back America !
The whole point is to expose this Election Shame for what it is . We need to divide & conquer Democrats & Republicans instead of them providing the American public with false choices, Its time to remove the Corporate Congress ! !
If you take away their power then you can take away their toys !
The Government will continue its PR & propaganda campaign using the following tactics as quoted by Joseph Goebbels during the 1930’s & 1940’s.
“If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.” AND
“The most brilliant propagandist technique will yield no success unless one fundamental principle is borne in mind constantly – it must confine itself to a few points and repeat them over and over”
The following link is a must read ! This is not the Future. This is the here & NOW ! http://1933key.com/US-Empire/US-Patriot-Act-Compared-to-German-Enabling-Act
See also : http://www.washingtonsblog.com/2014/05/spying-meant-crush-dissent-terrorism.html
The supreme law of The USA is the Constitution, not the Patriot act the FISA act, or any other such acts that have unconstitutional provisions,are invalid & it matters not how many public officials say it’s legal, it’s NOT for the Constitutional Amendments say otherwise ! ! To say it is legal only shows the public their betrayal of the Constitution, their oath of office, and the American people.
No more lies, excuses rationalizations,or justifications, the public needs to hold these officials to account to the fullest extent of the law under Title 18 sec. 241 & 242 So any future traitors will know there will be consequences to such behavior. I hope the other five eyed nations have equivalent laws, but if not maybe it’s time to get some. Better late than never.
Don’t blame Snowden or the Press for the actions of NSA & GCHQ & our Governments, they are the ONLY ones responsible for the crimes they have committed ! ! ! See USC Title 18 Sec. 241 & 242 (Google it). So why no arrest warrants for high crimes, but only for misdemeanors ? ? ?
High crimes = NSA + GCHQ + PUBLIC OFFICALS OF THE UK & US ! ! !
Misdemeanors = Snowden, Manning, Assange, lAVABIT
REMEMBER: POLITICIANS, BUREAUCRATS AND DIAPERS SHOULD BE CHANGED OFTEN AND FOR THE SAME REASON.
Some word of true Patriots are as follows, as opposed to the words of false flag patriotism of today.
He that is of the opinion money will do everything may well be suspected of doing everything for money.
Benjamin Franklin
He that is good for making excuses is seldom good for anything else.
Benjamin Franklin
Experience hath shown, that even under the best forms of government those
entrusted with power have, in time, and by slow operations, perverted it into tyranny.
Thomas Jefferson
Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.
Thomas Jefferson
In framing a government which is to be administered by men over men you must first enable the government to control the governed; and in the next place oblige it to control itself.
James Madison
Liberty may be endangered by the abuse of liberty, but also by the abuse of power.
James Madison
The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.
Patrick Henry
“We the People are the rightful masters of BOTH Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution”
Abraham Lincoln
America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.
Abraham Lincoln
As a reminder Hermann Goering said at the Nuremberg Trials .
“The people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country.”
We should not forget the waring of President Eisenhower .
http://youtu.be/8y06NSBBR
The NSA is controlled & operated by the DOD & the MIC (Military Industrial Complex) Private Corporations.
“The very word “secrecy” is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it.”
President John F. Kennedy
Waldorf-Astoria Hotel
April 27, 1961
As is said in the law, falsus in uno, falsus in omnibus. (“False in one thing, false in all things” is an instruction given to jurors: if they find that a witness lied about an important matter, they are entitled to ignore everything else that witness said.)
Time to start removing the corporate Congress from office & defunding the NSA to force them to comply with the law & impose jail time for non compliance under USC Title 18 Sec. 241 & 242 (Google it) .
“Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power.”
Benito Mussolini
Disclaimer: Be advised it is possible, that this communication is being monitored by the National Security Agency or GCHQ. I neither condone or support any such policy, by any Government authority that does not comply, as stipulated by the 4th Amendment of the U.S. Constitution.
Well said.
It is past time to re-name the Federal Bureau of Investigation to the Fascist Bureau of Investigation. They are in business only to empower their corporate masters.
And thank you for the wonderful post, Dan. I wish I had one of those letters to send you. Our government is completely mad at this point. A danger to the entire planet. And a country of sheeple that just lets them get away with it.
At risk of being called names I’ll just say this: Sense Mr. Froomkin is at pains to describe First Look Media as a non-profit let me point out that the credit card company Visa is also a non-profit organization. The term applies to a wide verity of activities and revenue generating organizations.
As for the NSLs, the Empire is above the law as does as it chooses and simply goes through these exercises of linguistic and bureaucratic contortion to keep up appearances that it is something other than a Neo-feudal Empire.
I don’t think Visa is a non-profit.
Visa is a ‘for profit’ entity. Google ‘ Visa Profit Margin’.
Oh, that I had one to send you! But I’m confident that someone will. Thank you very much for initiating this effort. It requires money, cojones, and a willingness to take risks, for anyone who is not already in prison to attempt something like this. Several of our most famous court decisions were prompted by people who had nothing at all left to lose. You have much to lose and I am thrilled that you are willing to take the risk. All the luck in the world to you.
Here is a new theory for you Obama supporters who continue to have difficulty reconciling the facts with his promises: Maybe he just has ADD. For instance, he makes a pronouncement about limiting National Security Letters then forgets the entire subject, and thus does not notice that his direction to his FBI is ignored. This is similar of course to the rationalizations made in a certain central European country in the 1940s, when details about what was going on started leaking out. Of course the leader did not know anything about it, opposed it, abhorred it even, but those evil men all around him. I mean, what’s a guy to do?
Alternatively, one could accept the hypothesis that Obama’s amorality is reflected in his choices of people appointed to positions of authority. Yes, yes, I know. There are more appropriate words than amoral.
Here’s a new theory for you supporters of only Democrats or only Republicans:
As long as people like you blame ONLY the Democrats or ONLY the Republicans, then YOU TOO are part of the problem that lends support to the duopoly oligarchy plutocracy.
Stop voting out of fear for the lesser of two evil political parties. It’s a false choice that leaves you wondering why we always end up with an evil government that continues to divide us and conquer us. Besides, continuing to make the same voting mistake while expecting different results is the definition of madness.
I believe the 1st Amendment only pertains to laws passed by Congress. However, it is a well established principle that the Executive can issue and enforce its own orders. The US is engaged in a GWOT and therefore can target, or indefinitely detain, anyone on grounds of national security.
So the FBI can place a gag order on whomever it wishes. The person can refuse to comply, but could then find themselves renditioned to Guantánamo. The FBI can also place a gag order on the existence of that gag order. I am surprised it hasn’t issued a gag order on reporting of the gag order program, but I’m sure they will soon remedy that oversight.
“I am surprised it hasn’t issued a gag order on reporting of the gag order program, but I’m sure they will soon remedy that oversight.”
They would if they could and may still do so. There’s most likely a task force dedicated to each organization reporting on these gag orders. With each turn of the page the Bill of Rights becomes more irrelevant and usurped by the GWOT. Anyone for another 100 years war? We’re well on our way. Speak up people.
C’mon Mr Green, you surely know better than that. You don’t want to start wars and find yourself an inmate of one of the vast prison system. The government is doing all it can to save you from yourself, and you are unmindful of this benevolence. Just go about doing whatever the LAW tells you to do and you will be good. Thankfully, for us the LAW does not mean Sharia – it is something that the people whom we have elected have given us so that we may be better controlled to function in less disorderly fashion than what you are contemplating.
The First Amendment applies to the people, both individually and collectively, to protect them from an overbearing government. Since members of Congress are also people, the First Amendment also applies to them individually, but not collectively to Congress. The people in verifiable consensus are the sovereignty, not the Federal Government and not even the Constitution. The people in verifiable consensus always have the sovereign right to censure Congress, and on occasion, such as Jury Nullification, overrule a federal or state law, or even the Constitution itself. That is true because the Constitution was never written to limit the power of We the People. It was written specifically to limit the powers of government.
The executive is actually prohibited from doing anything not authorized by law. Which includes anything which violates the Constitution. (Any bill passed by Congress in violation of the Constitution simply isn’t a law; that’s the way the Bill of Rights works)
The question is, who enforces this prohibition? At the moment, DAs appear to be able to literally get away with murder. Become the head of the DOJ — then you can be filmed eating live babies’ heads on television, but who’s going to prosecute you?
Hey, it’s all about terrorism when the media are looking, and all domestic crime when they are not!
The wording of the NSL’s and the sheer numbers issued say so, and ever more clearly, Snowden’s documents say so with the revelation that some 17,000 requests for communications info are received on average daily by the NSA, with only 15% of claiming any connection to a terrorism concern.
Ballsy!
“Want to send my your old NSL…”
should be “me”
Need an editor? Get in touch!
(Great posting. Stay on this one, please…)
The question, of course, being what work? Clearly not entirely to protect national security, or at least not national security as most of us think of it. Someones security I suppose.
“The question, of course, being what work?”
Their ongoing COINTELPRO operations,conducted with JTTFs all across the U.S. (The name may have changed, but the game is the same, or worse — given all the new “toys”, etc., coupled with the many “good Americans” who are more than ready to help.
Comey also said that ‘everybody is a little bit bigoted’. Ahhhh meritocracy at its finest.