The Washington Post reported yesterday that the FBI abused its authority to issue National Security Letters (NSLs) and that this abuse permitted it to illegally obtain more than 2,000 telephone call records from 2002-2006. This disclosure, made while Congress contemplates Patriot Act legislation that could rein in use of NSLs, should prompt a re-examination of the approaches taken in the pending bills.

A national security letter is a simple form document issued by the FBI and other agencies of the government to obtain telephone call records, email to/from information, and other records about communications, as well as financial, credit, and other records, without any prior judicial authorization. NSLs are served on the business entities that hold the records and the businesses that receive NSLs must comply or challenge them in court, and with limited exceptions, are barred from disclosing to anyone that they have received or complied with the demand for records.

The Patriot Act removed most of the legal restraints on issuing NSLs, including the requirement that the NSL seek information that pertains to a spy, a terrorist or another agent of a foreign power, and the requirement that agents articulate a factual basis for seeking records with an NSL. But it left in place the very minimal requirement that the NSL be issued only to seek information relevant to an investigation to protect against international terrorism or clandestine intelligence activities. Rather than comply with this minimal requirement, FBI officials issued "exigent letters" to obtain information that should have been sought with NSLs even when no investigation had been opened, and in some cases, even though the information was not sought in an emergency situation. "Exigent letters" were a creation of the FBI and have no basis in law.

After this and other abuses were disclosed in a DOJ Inspector General report issued in March 2007, the FBI put in place administrative changes it said were designed to prevent a recurrence. Those changes included internal review by lead attorneys in FBI field offices of NSL requests. However, The Washington Post article reveals that officials who sanctioned the illegal exigent records included senior officials of the FBI - managers as high as Assistant Director of the FBI. It is not likely that an attorney in an FBI field office will be able to stop illegal activity sanctioned by his boss's boss. That the abuses went this high up the chain of command at the FBI had not been previously revealed.

Congress is currently considering legislation to reauthorize three expiring provisions of the USA Patriot Act. Both the House and Senate Judiciary Committees have reported legislation, but neither bill has come to a vote. While the Senate bill does little to rein in NSLs, the House bill would actually make a difference by focusing NSLs more on terrorists and spies, rather than on records about everyone else. Neither bill, though, explicitly addresses and precludes exigent letters. Each requires a statement of specific facts (the House bill also requires that those facts be "articulable") showing reasonable grounds to believe that the information is either relevant to an investigation (Senate bill) or is relevant and pertains to an agent of a foreign power (AFP), someone in contact with or known personally to such AFP, or is relevant to the activities of an AFP who is under investigation (House bill).

In theory, a requirement that agents articulate the facts that form the basis for seeking records with an NSL should stop the practice of issuing NSLs without any factual basis and without having opened the investigation that is a pre-requisite to issuing the letter. However, for such a limitation to be effective, agents must comply with the law. That they failed to do so over a five-year period following 9-11 does not inspire confidence that they will do so in the future, regardless of whether the law is more exacting. Self-policing doesn't work.

Another approach, which Senator Feingold included in the bill he introduced to reform the Patriot Act, would make a difference. Feingold's Justice Act (S. 1686) put sensitive records beyond the reach of NSLs. They could be sought only with criminal authorities subject to all of the checks and balances that come with criminal prosecutions, or with prior judicial authorization for intelligence-related investigations. Congress has so far rejected this approach. It should either be re-considered in light of these new disclosures, or an alternative should be adopted to preclude unlawful issuance of NSLs to seek sensitive personal information.

[Image via Security, Privacy and the Law.]

After 57 months, the case against Ahmed Ghailani (pictured) should be dismissed, his lawyers say. In a motion filed under seal last month, and just released in part yesterday, Ghailani's attorneys argue that Ghailani's right to a speedy trial was violated, unduly prejudicing the case against him.

Ghailani faces 286 counts for his alleged involvement in the 1998 bombings of U.S. embassies in Kenya and Tanzania. He was included among almost two dozen suspected terrorists in a broad indictment against those who would kill Americans "anywhere in the world, including in the United States." The indictment also targets Osama bin Laden, and may be extended to Khalid Shaikh Mohammed, should prosecutors seek to have his trial overseen by the same judge assessing Ghailani's case.

Ghailani was captured in Pakistan in 2004 and detained in overseas black sites for approximately two years, then sent to the detention facility at Guantanamo Bay. During this time, Ghailani's attorneys assert that he was the subject of "enhanced interrogation techniques," which they claim ammounted to torture. (After their introduction of this subject in their moving papers, several pages are redacted. Marcy Wheeler has more on Ghailani's evidentiary challenges here.)

Between the embassy bombings and his ultimate capture, the U.S. government claims that Ghailani served as Osama bin Laden's personal cook and driver. Ghailani's lawyers thus argue that the government was trying to turn him into an "intelligence asset" during his extended detention, interrogating him over 100 times about al Qaeda's operations and the whereabouts of bin Laden. 

"This motion asks one primary question," Ghailani's attorneys write. "Can national security trump an indicted defendant's constitutional right to a speedy trial? We respectfully submit that the answer is emphatically and without qualification, ‘No.' "  The government's reply is expected in the coming months.

Under a policy announced last year by San Francisco Mayor Gavin Newsom the day after he launched his California gubernatorial campaign, teenagers arrested for any reason in San Francisco would be subjected to immigration status checks. But that policy has been overturned by the the city's and county's Board of Supervisor's.

The Board rescinded that policy yesterday, saying that it led to the unwarranted break-up of many families. Under the new policy, teens arrested for felonies will still have their immigration status checked and may be turned over to federal immigration officials where appropriate.

"We recognize that there's a need to do some reporting" of illegal juveniles, Supervisor David Campos told The New York Times. "But we're trying to strike a balance."

The Senate Judiciary Committee yesterday approved legislation to reauthorize the three expiring provisions of the USA PATRIOT Act and in the process rejected key amendments to restore civil liberties damaged when the Act was first adopted a few weeks after 9-11. The Obama Administration's opposition to civil liberties protections played an important role in this disappointing outcome.

The Committee failed to adopt any meaningful limits on National Security Letters (NSLs). Under the Patriot Act, FBI agents can use NSLs, without the approval of a judge, to obtain sensitive financial and communications records about anyone, even people suspected of no wrongdoing, solely on the claim of an FBI official that the information is "relevant" to an ongoing investigation. Earlier I wrote about an amendment that would have ensured that NSLs could be used to obtain sensitive personal information only if there was some reason to believe that the information pertained to a foreign terrorist or spy or somebody in contact with or known to such a person. That's not a very exacting requirement - and the amendment under consideration didn't even go so far as to require judicial approval - but still the Committee rejected it yesterday.

Instead, Senators opted for the more permissive "relevance" standard in current law. After a protracted debate, the Senators adopted a requirement that government agents write down specific facts showing that the information sought was relevant to an investigation. But that addition offers little protection, especially since intelligence investigations can be very broad and no one outside the FBI reviews the claim of relevance anyhow. The better way to focus intelligence resources would have been to ensure that the government was collecting information about potential bad actors and anyone tied to such people. Absent this minimal grounding, abuses and misuses of NSL authority identified by the DOJ's own Inspector General will persist.

Perhaps most surprising and troubling about the Judiciary Committee action was the role of the Obama Administration, which opposed civil liberties protections that were even weaker than the civil liberties protections Barack Obama favored as a Senator. As but one example, as Senator, Obama signed a letter calling for an amendment that would have said that the related authority in Section 215 of the Patriot Act to obtain a court order for any "tangible things" could have been issued only for records pertaining to a suspected spy or terrorist or someone tied to a suspected spy or terrorist. Senator Obama also co-sponsored a bill with an even stronger standard. Despite Senator Obama's history of favoring strong standards in the Patriot Act, President Obama's Administration persuaded Judiciary Committee members to reject even limited improvements.

This is not to say that the bill the Senate Judiciary Committee just approved (S. 1692) diminishes civil liberties protections in current law. In fact, it enhances those protections, albeit in small ways. It shortens from 30 to seven days the period during which the government can delay notice when it conducts a "sneak and peek" search to find evidence of crime. It imposes minimization requirements on NSLs to limit the dissemination to other agencies of personally identifiable but irrelevant information about Americans obtained with an NSL. It takes significant steps to bring the NSL gag provision in line with the First Amendment by providing for a more meaningful judicial review. It requires accountability measures that could uncover abuses, including Inspector General audits of the use of NSL and Section 215 authority, public reporting about the number of people subjected to FISA surveillance, and new sunsets that may prompt members of Congress to ask tough questions about use of Patriot Act powers when reauthorization is sought.

But, when it comes to the most important issue - requiring strong standards for access to records about Americans and appropriate judicial review when those records are sensitive - the Senate bill falls short. We can only hope that the House Judiciary Committee will do better.

The surveillance powers authorized by the USA PATRIOT Act endanger civil liberties, but their impact pales in comparison to that of the FISA Amendments Act (FAA) passed by Congress last summer. That law eviscerated Americans’ protections against domestic spying by intelligence agencies and granted immunity to telecommunications companies that illegally assisted in the National Security Agency’s warrantless wiretapping. The PATRIOT renewal debate offers the first, best, and perhaps last meaningful opportunity to reform that law, and the Electronic Frontier Foundation (EFF) urges members of the Senate Judiciary Committee to support any amendments to the FAA offered by Senator Feingold when it considers PATRIOT renewal tomorrow morning.

Last week, Greg Nojeim of the Center for Democracy & Technology (CDT) ably introduced ACSblog readers to the current state of the USA PATRIOT debate: how three provisions related to PATRIOT are set to expire at the end of the year; how Senators Leahy and Feingold have introduced bills that would renew most or all of the expiring provisions but that also contain critical new privacy protections; how the Senate Judiciary Committee is set to consider those bills tomorrow; and how, in CDT’s opinion, “reform of NSL authority should be at the top of the congressional agenda for the Patriot Act.” EFF wholeheartedly agrees with CDT’s conclusion that the FBI's authority to issue National Security Letters is the PATRIOT power that poses the most clear and present danger to civil liberties. However, the PATRIOT debate is also a critical opportunity—perhaps the only opportunity—to significantly reform the much more worrisome surveillance powers granted by the FAA.

From a civil liberties perspective, focusing on reforming the PATRIOT Act without also considering FAA reform is like rearranging deck chairs on the Titanic. Although objectionable in the extreme, PATRIOT did not fundamentally change the structure of federal surveillance law; rather, it was a collection of nips and tucks to current law that favored Executive authority over personal privacy, which when taken together constituted a significant new threat to civil liberties. On the other hand, the FAA was a radical facelift to the law, which broadly expanded the government’s warrantless wiretapping authority and reduced Americans’ protections against interception of the content of their phone conversations and emails. Admittedly, NSLs authorized by PATRIOT have been used to obtain the sensitive phone, internet and credit records of hundreds of thousands of Americans. The FAA, however, is being used to intercept and store millions upon millions of private telephone calls and internet communications, including purely domestic communications.

This assertion is borne out by the investigative reporting of the New York Times, a leader when it comes to covering surveillance issues. The Gray Lady first reported back in April that in its attempts to implement the FAA, the National Security Agency (NSA) had engaged in “significant and systemic” “overcollection”—i.e., illegal interception—of large volumes of domestic email traffic. The Times’ follow-up reporting indicated that the “overcollected” emails likely numbered in the millions, and that those millions of illegally intercepted emails were being kept by the NSA in a database code-named “Pinwale”.

The Times’ reporting provided further proof of what EFF has been alleging all along in its two lawsuits over the NSA surveillance, Hepting v. AT&T and Jewel v. NSA: that the NSA program is not narrowly targeted at the international communications of people linked to terrorism as President Bush always claimed, but instead is a program of dragnet surveillance whereby the NSA, plugged into key telecommunications switches across the country, vacuums up millions of private communications including domestic calls and emails.

In other words, the NSA program isn’t a “retail” surveillance program, where the government picks a target and then wiretaps that target. Rather, according to news reports and whistleblower evidence, it’s a “wholesale” surveillance program where the NSA sucks up millions of communications and then uses data-mining techniques to pick out the communications that intelligence analysts will read or listen to. Crucially, as we’ve alleged and as the Times’ latest reporting has demonstrated, this dragnet program of wholesale surveillance is still happening under the Obama Administration.

EFF and the Times aren’t alone in sounding the alarm over the NSA’s ongoing spying program. Indeed, the concluding sentence of a recent joint report by the Inspectors General of the Justice Department and a range of intelligence agencies on the Bush-era version of the NSA program was a warning: a warning that the “collection activities” pursued under the newly amended FISA law are “unprecedented” and that the retention and use of the collected information “should be carefully monitored.” Apparently, even NSA’s own inspector general is worried about unprecedented scope of the NSA’s surveillance!

Luckily, Senator Feingold and Durbin are also concerned—so concerned that they included a range of privacy-protective FAA amendments in their PATRIOT reform bill, the JUSTICE Act. Perhaps most importantly, section 304 of JUSTICE would prohibit the government from using the FAA to engage in “bulk collection” of Americans’ communications, and would instead require the government to only acquire the communications of individual targets who are linked to terrorism or espionage and are believed to be outside of the U.S. EFF, like the Times’ editorial board, would prefer to see the whole FAA repealed, including the provision granting immunity to telcos like AT&T that are being sued by EFF and others for their illegal collaboration in the NSA program. But the reforms in the JUSTICE Act represent an important step in reining in this powerful new surveillance law.

CDT is certainly right that the “prize” when it comes to PATRIOT reform is NSL reform, and that we shouldn’t get too distracted by debate over the expiring provisions. However, EFF would go further to say that we shouldn’t get too distracted by PATRIOT reform when thinking about surveillance reform, because in the end the FAA is the much greater threat to civil liberties. Therefore, the single most important thing that members of the Senate Judiciary Committee can do tomorrow to protect the civil liberties of all Americans is to look beyond the four corners of PATRIOT and support Mr. Feingold’s FAA reforms. If you agree, please visit EFF’s action center and tell your Senator to support PATRIOT reform and FAA reform by supporting JUSTICE.

Legislation to amend the USA PATRIOT Act, and to reauthorize three expiring provisions of intelligence law that relate to it, was introduced in the Senate in the last few days. Both Senator Leahy's USA Patriot Act Sunset Extension Act, S. 1692 and Senator Feingold's JUSTICE Act, S. 1686, make improvements to protect civil liberties, with the JUSTICE Act taking a much bolder approach. It is easy to get lost in the tall grass of the Patriot Act, but here is what to keep in mind: reform of National Security Letter (NSL) authority should take center stage, even though the provisions do not sunset, because serious NSL abuses of have been documented by the DOJ's own Inspector General.

Unless Congress acts by December 31, Patriot Act Section 206 (roving intelligence wiretaps), Patriot Act Section 215 (access to business records) and Section 6001 of the Intelligence Reform and Terrorism Prevention Act (wiretapping of "lone wolf" terrorists) will all expire. Both Senate bills address these expiring provisions, and both, appropriately, go beyond the sunsetting provisions by proposing reform of other surveillance authorities, including to NSLs.

Why is it appropriate for Congress to take up Patriot Act provisions that don't even expire? Because that's where the abuses are taking place. The Patriot Act provisions that expire need some improvements, but they are seldom used, and when they are used, they are used with judicial authorization, so there is at least that crucial check already.

Take lone wolf surveillance, for example.This authority authorizes the FBI to secure a court order under the Foreign Intelligence Surveillance Act to wiretap non-citizens in the U.S. (other than green card holders) even if they are not suspected of being members of a terrorist group. The provision marked an important departure from the theory underpinning intelligence surveillance: for the first time, it said that the government would not have to prove that the person to be surveilled was an agent of a foreign power, such as a foreign terrorist organization; instead, it would have to show that the person was engaged in international terrorism or in activities in preparation therefore. Such a showing would usually be sufficient to authorize criminal, as opposed to intelligence, surveillance.

This is a troubling precedent, but consider the reality: lone wolf surveillance authority has never been abused. In fact, it has never even been used. Not once. The Department of Justice recently sent a letter to Senator Leahy revealing for the first time that it has never even sought a surveillance order under the lone wolf provision. The JUSTICE Act would allow the provision to expire. The Leahy bill would reauthorize it for four more years. While the provision deserves some attention, a two-month debate about reauthorizing a power that has never been used would be a distraction from much more important matters.

The same consideration should inform the debate about how to reform Section 215, the "library records" provision of the Patriot Act. Section 215 permits the government to obtain an order from the Foreign Intelligence Surveillance Court requiring a person or business to produce any tangible thing, including business records. The government merely has to provide a statement of facts showing that the thing sought is relevant to an investigation. Section 215 orders normally come with a gag that bars anyone from disclosing to anyone else that the FBI sought or obtained materials under this section. The DOJ revealed that Section 215 was used 220 times from 2004-2007, and it said that a 2006 change in the law now makes use of Section 215 unnecessary in 173 of those cases. If that trend holds, Section 215 will be used to obtain records about ten times per year. Both the Leahy bill and the JUSTICE Act would tighten the standard for obtaining Section 215 orders by requiring a tie between the party whose records are being sought and an agent of a foreign power (the JUSTICE Act would require a stronger tie.) Both bills would limit the gag that accompanies Section 215 and would facilitate First Amendment challenges to the gag. These changes should be enacted, but the concerns with Section 215 orders pale in comparison to problems that we know exist with National Security Letters.

NSLs are form letters issued by FBI agents and officials of other agencies to compel disclosure of sensitive personal information held by banks, credit companies, telephone carriers, Internet Service Providers, travel agencies, jewelers, the Postal Service, insurance companies, casinos, car dealers and other businesses. To issue one of these demands, the government need merely convince itself that the information sought is relevant to an investigation - there is no judicial authorization of NSLs. Like Section 215 orders, NSLs come with a gag: you risk a prison term if you disclose that you received one. However unlike Section 215, NSLs are used not ten times per year, but tens of thousands of times each year. Moreover, the DOJ's Inspector General found rampant abuse and misuse of NSL authorities: they were used to get information for investigations that hadn't even been opened, to circumvent adverse rulings of the FISA court, and a single NSL was used to obtain records about thousands of individuals.

Reform of NSL authority should be at the top of the congressional agenda for the Patriot Act. Both the JUSTICE Act and the Leahy bill would make improvements in NSLs. The Leahy bill would require reports and audits on the use of NSLs, would require that NSLs include a statement of facts showing that the information sought is relevant to an investigation, and would impose procedures for lifting the gag that accompanies NSL orders. These changes will help address the civil liberties problems associated with NSLs, but they do not get to the heart of the matter: the standard for government access to sensitive records needs to be raised, in that the FBI should be required to appear before a judge in order to get sensitive financial, Internet and other records for intelligence purposes. NSLs are appropriate for less sensitive information, such as a person's name, address, email address and phone number, and other identifying information. The standard for issuing them should be raised to require a tie between the person whose records are sought and an agent of a foreign power.

But, most importantly, more sensitive information, like financial records and email and phone logs that reveal a complete picture of those with whom you associate, should be put beyond the reach of NSLs. The government could still obtain the information under Section 215, but would have to meet a higher standard and submit to judicial review. It could also use criminal authorities to obtain the information in appropriate cases. These are the reforms in the JUSTICE Act: it prevents abuse by removing the most sensitive personal information from the purview of the NSL statutes.

Patriot Act watchers should keep their eyes on the prize: the most important thing the Senate Judiciary Committee could do to protect civil liberties when it takes up the Leahy bill would be to lift the NSL provisions from the Feingold JUSTICE Act and insert them into the bill the Committee sends to the Senate floor.

Justices Ruth Bader Ginsburg and David Souter both adddressed constitutional interpretation recently before law school audiences. While each embraced originalism as one tool in the judicial arsenal, they were also quick to spell out its shortcomings.

"Originalism is fine if you don't expect too much from it," Souter told attendees [video] of his lecture at Harvard Law School, likening the methodology to pulling a rabbit out of a hat.

"[W]hat happens when a helicopter is above your house searching for marijuana ... without actually searching the home?" Ginsburg asked her audience at Northwestern Law School. "The Fourth Amendment has to apply to new circumstances. The Constitution is the oldest in the world, and the expectation was that it would govern us through the ages and through change in time."

Several provisions of the 2001 PATRIOT Act, set to expire at the end of this year, are being reconsidered by both the House and Senate this week.

The Washington Independent's Daphne Eviatar reports that during today's hearing before the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties, Judiciary Committee Chairman John Conyers and Rep. Jerrold Nadler questioned "the sneaky way that the Patriot Act got passed in the first place, offering an interesting glimpse into the behind-the-scenes workings of Congress." The Senate Judiciary Committee will hold a related hearing tomorrow.

Ahead of this week's hearings, several senators introduced the JUSTICE Act to reform those powers granted in the PATRIOT Act and FISA Amendments Act, which are of greatest concern to civil libertarians.

After mounting criticism from civil liberties organizations, the Department of Homeland Security (DHS) has taken steps to provide greater oversight of border searches of travelers' laptops and other electronic devices.

DHS issued, late last month, a statement on "new directives to enhance and clarify oversight for searches of computers and other electronic media at U.S. ports of entry - a critical step designed to bolster the Department's efforts to combat transnational crime and terrorism while protecting privacy and civil liberties."

The statement continued:

The directives, available at DHS.gov, will enhance transparency, accountability and oversight of electronic media searches at U.S. ports of entry and includes new administrative procedures designed to reflect broad considerations of civil liberties and privacy protections-measures designed to ensure that officers and agents understand their responsibilities to protect individual private information and that individuals understand their rights. 

The new guidelines, reported the Associated Press, include requiring a supervisor to approve holding a traveler's computer or other property for more than five days. Additionally, the directives maintain that any information culled from travelers' media devices that is not pertinent to criminal activity will be quickly destroyed.

During the Bush administration, DHS issued policy allowing agents of the U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement to seize, without suspicion of criminal activity, travelers' laptops and other electronic tools at border crossings, and retain and share information found on the devices with other federal authorities. In 2008, Sen. Russell Feingold called the policy "alarming" and suggested legislative action should be taken to require federal agents to have reasonable suspicion of wrongdoing before seizing and searching travelers' property.

Both former NSA Director Michael Hayden and former Justice Department attorney John Yoo have taken to the editorial pages of major national newspapers this summer to defend the so-called Presidential Surveillance Program, the still-shadowy set of programs that spy on Americans in America without any probable cause or warrant. This campaign to sway public opinion is ongoing because neither the past Bush officials nor the current Obama administration officials dare to defend their illegal activities on the merits in a court of law.

While the details are unknown, credible evidence indicates that billions of everyday communications of ordinary Americans are swept up by government computers and run through a process that includes both data-mining and review of content, to try to figure out whether any of us were involved in illegal or terrorist-related activity. That means that even the most personal and private of our electronic communications - between doctors and patients, between husbands and wives, or between children and parents - are subject to review by computer algorithms programmed by government bureaucrats or by the bureaucrats themselves.

It's a bizarre turn of events, these unwarranted general searches. Our country was founded on the rejection of "general warrants" - pieces of paper that gave the Executive (then the King) unchecked power to search colonial Americans without cause. The Fourth Amendment was adopted in part to stop these "hated writs" and to make sure that searches of the papers of Americans required a probable cause showing to a court. The warrantless surveillance program returns us to the policies of King George III only with a digital boost. It subjects a huge number our daily digital papers to threshold surveillance, then adding subsequent, more intrusive warrantless surveillance if faceless government computers and bureaucrats determine that our communications or communications patterns merit further scrutiny.

Both Yoo and Hayden draw from a similar bag of tricks to defend the surveillance programs, including claims that there was a "gap" between our domestic surveillance and our foreign intelligence surveillance.

They also cite the briefings given to select members of Congress, which the members themselves say were often incomplete and even possibly misleading. They then rely on the fact that hand-picked Bush administration political appointee attorneys signed off. But all of these rationales dodge the critical constitutional questions raised by wholesale surveillance of Americans without probable cause or a judicial determination. What these Bush officials call a "gap" between domestic surveillance authority and our ability to conduct surveillance of foreigners abroad is where our constitutional rights reside.

The Bush administration's central view was that the executive branch was somehow above the niceties of the Constitution. What's clear now, and deeply distressing, is President Obama's embrace of that radical view and rejection of the rule of law. Despite running on promises to return the country to the proper constitutional balance, President Obama's Justice Department has been pulling out all the stops to kill the major lawsuits challenging the surveillance while giving no indication that the surveillance has ceased.

The administration's arguments are not addressing the merits of the legal claims, but instead are seeking to prevent real judicial review of the surveillance programs and thereby avoid the crucial constitutional questions. If our system of checks and balances is to continue and if our nation is to remain faithful to the individual liberties on which it was founded, then the Bush and Obama administrations must defend their surveillance program on the merits before a court of law.