On March 9 the Justice Department’s inspector general revealed that the FBI has been systematically abusing its expanded power to issue “national security letters” and obtain private information about US citizens and residents from telephone companies, Internet service providers, banks, credit providers, and other businesses.
Between 2003 and 2005 the FBI issued more than 140,000 specific demands, without a showing of probable cause or prior judicial approval, to obtain potentially sensitive information about U.S. citizens and residents. That number was significantly underreported to Congress each year.
Among the problems identified by the report are sloppy and inconsistent recordkeeping by the FBI, which resulted in substantial under-reporting of errors; NSLs that were signed by unauthorized personnel; confusion among recipients of NSLs that resulted in disclosure of private information to which the FBI was not entitled; and a pattern of fabricating “immediate threats” to justify the demands.
I didn’t realize that the letters included an enforceable gag order preventing the recipient from telling anyone – anyone – that the FBI was seeking the information. That helps explain how something like this could have been occurring under our noses.
The Washington Post has printed an article that describes what the gag order means for the recipient of such a letter.
“Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand — a context that the FBI still won’t let me discuss publicly — I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled. . . .
“Living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case — including the mere fact that I received an NSL — from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie. . . .
“I found it particularly difficult to be silent about my concerns while Congress was debating the reauthorization of the Patriot Act in 2005 and early 2006. If I hadn’t been under a gag order, I would have contacted members of Congress to discuss my experiences and to advocate changes in the law. The inspector general’s report confirms that Congress lacked a complete picture of the problem during a critical time: Even though the NSL statute requires the director of the FBI to fully inform members of the House and Senate about all requests issued under the statute, the FBI significantly underrepresented the number of NSL requests in 2003, 2004 and 2005, according to the report.
“I recognize that there may sometimes be a need for secrecy in certain national security investigations. But I’ve now been under a broad gag order for three years, and other NSL recipients have been silenced for even longer. At some point — a point we passed long ago — the secrecy itself becomes a threat to our democracy.”
The article is anonymous because the author is still living under the gag order; the Post had to confirm the facts independently.
