Heat-Seeking Missives

There’s a move afoot on Capitol Hill to rein in some of the vast powers conferred upon government investigators by the PATRIOT Act, the infamous, hastily crafted law written in response to the September 11^th attacks. New legislation has been introduced in both Houses of Congress intended to curb the FBI’s ability to collect private data on virtually anybody using a tool called a national security letter (NSL). The bills come in the wake of yet another damaging FBI inspector general report on the bureau’s abuse of its expanded authorities.

“The privacy of American citizens is a core value in our society,” said Sen. Sheldon Whitehouse (D-R.I.), a former federal prosecutor and member of the Senate Judiciary Committee at an April 23 hearing on the FBI’s use of NSLs. ​“I think this is our next really big civil liberties issue.”

And addressing that issue may start with a bill, sponsored by Sen. Russ Feingold (D-Wisc.), which would both drastically limit the circumstances under which these secretive orders are issued and strictly regulate how the information obtained is handled by the FBI.

NSLs function, in some superficial ways, as traditional subpoenas. Like subpoenas, they require recipients to turn over information that might be relevant to criminal investigators. Unlike subpoenas, however, NSLs aren’t subject to judicial oversight, making them ripe for abuse.

An NSL authorizes the acquisition of what’s known as metadata; information – like phone records, and financial statements – that reveal a suspect’s behavioral modes only. An NSL can’t, for instance, serve as a warrant for a wiretap, but it can be used to obtain reams of data about an individual’s calling patterns. It is often used to collect a person’s business (or ​“transactional”) information as well – with an NSL, the FBI can ask for a person’s insurance information, but not his medical records.

NSLs aren’t subject to the approval of any court or judge, they can be issued under extremely broad circumstances, and, by way of a sweeping gag order, they forbid the recipient from discussing the information request under almost any circumstances. And their use has exploded since the passage of the PATRIOT Act, which removed almost all legal restrictions on the FBI’s authority to issue them.

Dubbed the National Security Letter Reform Act of 2007, Feingold’s bill would check NSL authority in a number of ways. Among other things, it would limit the type of information the FBI can demand in an NSL to a defined category of less-sensitive data (such as names, addresses, account numbers, IP addresses, and other identifying materials), while requiring agents to seek more personal information (phone and financial records, for instance) through some sort of judicial process. It would limit the now-indefinite term of the gag order to no more than six months. And it would restrict the FBI’s ability to share the obtained information – now stored on three FBI databases and accessible by thousands of people – with other agencies.

A similar bill introduced in the House by Rep. Jerrold Nadler (D-NY) would allow victims of illegally applied NSLs to sue for damages in civil court.

Both bills, in short, seek to prevent the FBI from repeating an incident that took place in North Carolina in July 2005.

At the time, FBI agents in Raleigh were seeking the educational records of an Egyptian man named Magdy Mahmoud Mustafa el-Nashar, once a student at North Carolina State University (and innocent of any wrongdoing, it turns out), in conjunction with their investigation of the London subway bombings earlier that month. As part of an apparent attempt to avoid judicial oversight, and despite the fact that NSLs do not apply to school records, the FBI handed university officials an NSL. In doing so, the bureau broke the law.

Realizing, correctly, that NSLs did not apply to el-Nashar’s private files, lawyers for the university refused to turn over his records to the FBI, telling the agents to come back with a grand jury subpoena instead.

In fact, according to a report released earlier this month by the Electronic Frontier Foundation, the FBI had actually obtained the documents it was seeking using a subpoena days before the university rebuffed its NSL request. But then, perhaps to keep its investigation of el-Nashar as covert as possible, FBI agents returned the documents to the school and re-requested them with the unlawful NSL. When the university refused to comply with the letter, FBI director Robert Mueller used the occasion to argue that his agency’s NSL authority needed to be strengthened.

Not all letter recipients have been as cautious as North Carolina State. A 2007 FBI audit, which sampled 10 percent of all NSLs issued between 2003 and 2005, discovered hundreds of instances in which the FBI collected information it didn’t have the authority to obtain. In only four cases was that improperly obtained information purged from the FBI’s databases.

A widely-reported inspector general review in 2007 documented hundreds of other examples of NSL abuse, and a follow-up report released this March concluded that the FBI had failed to implement safeguards meant to mitigate those abuses.

Aside from the Judiciary committee’s ranking member, Sen. Arlen Specter (R-Penn), only two Republicans – Sen. John Kyl (R-Az) and Sen. Jeff Sessions (R-Ala) – attended last Wednesday’s hearing. As a harbinger of the legislative skirmish ahead, both men voiced strong reservations about the bill. Sessions in particular said he disagreed with a previous tightening of the national security letter provision in the Patriot Reauthorization Act of 2005, and objected to further restrictions on the FBI’s use of NSLs. The restrictions in the proposed legislation, Sessions said, were ​“all to make sure than the spies and terrorists have their full rights – in fact, have more rights than drug dealers.”

A distinctly different view was voiced by Specter, who complained that, when it comes to the FBI’s use of NSLs, Congress currently does not have ​“the semblance of effective oversight.”