[Infowarrior] - New bill would tighten rules for National Security Letters

[Richard Forno]

http://arstechnica.com/tech-policy/news/2009/03/nsl-reform-legislation-reintroduced.ars

New bill would tighten rules for National Security Letters

National Security Letters, a controversial tool that lets  
investigators obtain records without a court order, has come under  
fire from civil libertarians, courts, and the government's own  
watchdogs. Now lawmakers have revived a proposal to rein in NSLs, the  
use of which has exploded under the PATRIOT Act.

By Julian Sanchez | Last updated March 31, 2009 1:10 PM CT

New bill would tighten rules for National Security Letters

Of all the expanded investigative powers authorized by Congress since  
the terror attacks of September 11, 2001, few have proved as  
controversial—or as consistent a source of embarrassment to federal  
law enforcement—as National Security Letters. Though audits by the  
Inspector General have uncovered widespread improprieties in the use  
of the investigative tool which allows the FBI to demand certain  
telecommunications and financial records without the need for a court  
order, a 2007 effort to further constrain NSLs stalled in committee.

Now, with a new administration and a sturdier Democratic majority in  
place, Rep. Jerrold Nadler (D-NY) and Rep. Jeff Flake (R-AZ) on Monday  
reintroduced the National Security Letters Reform Act. The bill would  
significantly tighten the rules for NSLs—which can currently be used  
to obtain records "relevant" to an investigation, whether or not they  
pertain to someone even suspected of wrongdoing—and the gag orders  
that typically accompany them.

NSLs are not new, but their scope and prevalence were greatly expanded  
by the USA PATRIOT Act of 2007. In 2000, investigators issued some  
8,500 NSL, according to a report by the Office of the Inspector  
General. In 2006—the last year for which figures were available, the  
number had risen to at least 49,425, down from a peak of at least  
56,507—though no estimates are available for 2001 or 2002, and sloppy  
record-keeping found by the OIG means all figures are lowbound. The  
"overwhelming majority" of those are for phone or telecommunications  
records, and by 2006, the bulk of those for which a target's  
nationality was specified were issued in connection with  
investigations of US persons.

The FBI hasn't coped terribly well with the increased volume: those  
OIG reports found an NSL process riddled with errors and policy  
violations—some of which appeared to have been flatly illegal. Agents  
sent "exigent letters" claiming an emergency when none existed,  
claimed grand jury subpoenas were pending when they weren't, and in  
some instances obtained information to which the statute did not  
entitle them. At hearings in 2007, a visibly angry Rep. Dan Lungren (R- 
CA), who had supported expanding NSL authority, said the OIG's  
findings sounded more appropriate to "a report about a first- or  
second-grade class" than college-educated FBI agents. Thus far,  
however FBI officials have successfully argued that they are aware of  
the problems and have already begun implementing reforms to prevent  
future errors.

Since Nadler and Flake last sought to supplement those internal  
efforts with more robust statutory checks, federal appellate courts  
have added to the list of rationales for congressional action. Civil  
libertarians have attacked not only NSLs themselves, but the broad gag  
provisions typically attached to them, which prevent parties served  
with them from discussing the requests. Congress sought to mollify  
critics by modifying the PATRIOT Act in 2006 to permit NSL recipients  
to retain attorneys and challenge orders they regard as unreasonable.  
But late last year, the Second Circuit Court of Appeals ruled that the  
law still gave FBI officials too much power to silence speech, with  
court oversight too anemic to satisfy the First Amendment. The court  
was prepared to allow a mix of court reinterpretation and FBI policy  
to bring the review procedures up to constitutional muster, but also  
invited Congress to fix the defective provision.

The National Security Letters Reform Act would do that, and a good  
deal more. While it would still permit high-ranking FBI officials to  
issue NSLs with temporary gag orders attached, the Bureau would have  
to petition a judge in order to extend that order beyond an initial 30  
days. Instead of requiring NSL recipients to challenge such orders,  
showing there was "no reason" to think disclosure might harm public  
safety or the integrity of an investigation, the agency would have the  
burden of showing a court specific facts justifying each six-month  
extension of the gag.

Perhaps most significantly, however, the law would radically narrow  
the scope of National Security Letters, which can currently be used to  
obtain financial or telecommunications transaction records that an FBI  
agent asserts are "relevant" to an ongoing investigation. Under the  
Nadler-Flake bill, NSLs would have to certify that the target to whom  
the information sought pertained was believed, on the basis of  
"specific and articulable facts," to be a "foreign power or agent of a  
foreign power."

The bill also establishes strict "minimization" requirements,  
mandating the destruction of any wrongly obtained information. While  
intelligence agencies often rely on "minimization" to protect the  
privacy of US persons, this often means only that innocent information  
will be retained without being indexed in a log or database for the  
relevant case. Anyone whose records are obtained via an NSL without  
adequate factual basis, or in violation of the statutory restrictions,  
is entitled to sue the person responsible for issuing the letter, to  
the tune of $50,000.