Civil Liberties, ISPs and the FBI’s Letter-Writing Campaign

Citing information from documents obtained from the Federal Bureau of Investigation under the Freedom of Information Act, a civil liberties group Tuesday maintained the federal agency has had chronic problems with its use of anti-terror letters to collect personal information about American citizens.

The Electronic Frontier Foundation (EFF) also asserted that besieged U.S. Attorney General Alberto Gonzales has been aware of those problems for some time.

Meanwhile, the governing body of the American Library Association (ALA) adopted a resolution on Wednesday condemning the use of National Security Letters (NSLs) to obtain library records and urging Congress to reform NSL procedures.

National Security Letters are authorized by the Patriot Act, an anti-terrorism law passed in the wake of the attacks on Sept. 11, 2001. They can be issued by the FBI without any outside review.

Keystone Kops

Many of the problems revealed in the more than 1,000 pages of records the EFF obtained by court were of the “Keystone Kops” variety, according to Staff Attorney Marcia Hofmann.

“You have field agents issuing NSLs for certain phone numbers and they would mess up the phone number and end up getting information on the wrong person,” she told the E-Commerce Times.

On another occasion, Hofmann noted, agents put classified intelligence in a grand jury subpoena without proper authorization.

Willing ISPs

The records also reveal a tendency by some Internet Service Providers (ISPs) to exceed their obligations when served with an NSL.

“We saw ISPs going overboard and giving field agents too much stuff — stuff about the wrong person, or stuff that they just absolutely should not have given the FBI,” she observed.

The behavior of ISPs when presented with the letters raises some important questions about the whole process, Hofmann asserted.

It shows “ISPs aren’t really sure what their responsibilities are and what they should give out and shouldn’t give out,” she said.

“Maybe that could be the result of the fact that NSLs aren’t as clear as they should be,” she suggested. “Maybe it’s because ISPs don’t really have a very good grasp of their legal responsibilities.

“Maybe,” she added, “it’s also because there’s absolutely no penalty for doing something like that.”

Gonzales Knew

The records also show that from 2005 to 2007 some 40 matters concerning questionable use of NSLs were referred to the FBI’s general counsel.

When such matters are referred to the general counsel, a copy is sent to the attorney general, Hofmann maintained, so he should have been aware of the problems with the FBI’s use of NSLs.

When contacted by the E-Commerce Times for comment on the EFF’s findings, an FBI spokesperson referred all queries to the attorney general’s office. A call to that office was not immediately returned.

Earlier this year, the FBI announced plans to reform its procedures for issuing NSLs. It said in a statement issued at that time:

“In the post-9/11 world, the National Security Letter (NSL) remains an indispensable investigative tool.

“NSLs contribute significantly to the FBI’s ability to carry out its national security responsibilities by directly supporting its counterterrorism, counterintelligence and intelligence missions.

“NSLs also allow the FBI to obtain information to eliminate concerns about individuals and close down investigations with a high degree of confidence there is no terrorism or adverse intelligence-gathering threat.”

Guidelines Not Enough

Last month, the agency issued 24 pages of guidelines intended to tighten up the use of NSLs. To some civil liberties watchdogs, though, those guidelines don’t address the real problem with NSLs.

“The statutory authority is too broad,” Caroline Fredrickson, director of the legislative office of the American Civil Liberties Union (ACLU), told the E-Commerce Times.

“The National Security Letter provision in the Patriot Act is written so that there is almost no standard that needs to be met to issue a National Security Letter, and there is no oversight,” she observed.

In its call for reform of NSL procedures, the ALA recommended:

• Judicial oversight of NSLs requiring a showing of individualized suspicion and demonstrating a factual connection between the individual whose records are sought by the FBI and an actual investigation;
• Elimination of the automatic and permanent imposition of a nondisclosure or “gag” order whenever an NSL is served on an individual or institution;
• Allowing recipients of NSLs to receive meaningful judicial review of a challenge to their NSL without deferring to the government’s claims;
• Increased oversight by Congress and the Office of the Inspector General of the U.S. Department of Justice over NSLs and FBI activities that implicate the First Amendment; and
• Providing for the management, handling, dissemination and destruction of personally identifiable information obtained through NSLs.