Everything you ever wanted to know about National Security Letters… But were afraid to ask.

A Historical Background

What is a National Security Letter? From FBI website: “A letter request for information from a third party that is issued by the FBI or by other government agencies with authority to conduct national security investigations.”

And…  There is a nondisclosure, or “gag” order attached  An NSL requires no judicial oversight

The Birth of National Security Letters 1986 Amendment to the Right to Financial Privacy Act (RFPA) Allows the FBI to obtain financial records and personal information without advance notice as a part of terrorism or espionage investigations

Increased Legal Authority for NSLs Electronic Communications Privacy Act (ECPA) Telephone, , billing records, and subscriber information Amendment to the Fair Credit Reporting Act (FCRA) Consumer Credit History Information

USA Patriot Act Passed October 2001 Meant to expand resources in identifying threats to national security Entities considered “relevant” can be investigated Approval authority of NSLs decentralized

Constitutionality of NSLs Challenged in Court  Doe v. Ashcroft  Doe v. Gonzales Violates 1 st and 4 th Amendment Rights

In the meantime…  Patriot Act up for renewal  USA Patriot Act Improvement and Reauthorization Act of 2005  Clarifies: 1. NSL recipient may disclose receipt when seeking legal counsel 2. Non-disclosure order does not automatically attach to NSL 3. Judicial review of non-disclosure requirement accompanying NSL

Does go to a Higher Court May 2006  Judge Cardamone writes concurring opinion: “a ban on speech does not fit comfortably with the fundamental rights guaranteed American citizens.” The U.S. 2nd Court of Appeals hears Doe v. Ashcroft and Doe v. Gonzales Returned to lower courts due to revisions made to the Patriot Act earlier in the year

The Department of Justice Gets Involved As a part of the Patriot Act Reauthorization the Office of the Inspector General is required to investigate the use of NSLs March 2007 report states that the FBI violated regulations in use of National Security Letter authority

ALA on NSLs  NSLs violate 1st Amendment Rights ALA is against government suppression of the right to intellectual freedom Urges Congress to enact greater oversight of NSL usage and eliminate “gag” order provision

Library Action!  Educate community  Destroy internet access logs daily  Post privacy-loss warning signs What will you do to protect your freedom?

National Security Letters in Foreign Intelligence Investigations: Comparison of National Security Attributes  Addressees and Certifying Officials  Purpose, Standards, and Information Covered  Confidentiality  Judicial Review  Dissemination  Liability, Fees, and Oversight

Department of Justice Inspector General’s Report  Review NSL issuance , and  100 FBI employees from headquarters and 50 FBI employees from national field offices interviewed  Examined FBI’s NSL tracking database

Department of Justice Inspector General’s Report  NSLs reported by FBI (by year):  2000: 8,500 NSLs  2003: 39,000 NSLs  2004: 56,000 NSLs  2005: 47,000 NSLs The Inspector General found these numbers to be flawed:  Inaccurate information in database  Information not entered consistently into database  Some information from the database was missing

Department of Justice Inspector General’s Report Errors were made because:  FBI gathered incorrect information  Gathered some information without a NSL  Mistakes in letters, causing confusion Violations:  Improper authorization of NSLs  Improper requests of information  Unauthorized collections of information

Department of Justice Inspector General’s Report Recommendations  Create control files for signed copies of letters  Improve NSL database  Better guidance over issuance of NSLs from FBI field offices  Tagging of information from NSL requests-learn how and when the information is used in criminal proceedings

FBI’s Response to Inspector General’s Report  NSLs valuable after 9/11 as an investigative tool  Director Robert S. Mueller has ordered corrective measures to be taken  Stronger internal controls  Improve oversight of NSL approvals  Expedited inspection

“Library Group Tells of A Gag Order by the FBI”  Library Connection-central computer system in Hartford, Connecticut  American Civil Liberties Union (ACLU) v. Gonzales  Originally filed as Doe v. Gonzales  Peter Chase (Library Connection Vice President of Board of Directors): “John Doe”  Other Library Connection members: George M. Christian, Barbara Bailey, Janet Nocek

ALA’s Resolution on the Use and Abuse of National Security Letters  ALA’s stance  Want to protect privacy rights of patrons and employees  Believe free thought should be protected  Resolutions  Condemns use of NSLs for obtaining library records  Wants Congress to propose protective reforms

National Security Letters Reform Act of 2007  Introduced to the House of Representatives by Rep. Jerrold Nadler (NY) on July 26, 2007  Proposes several procedural protections for NSLs  The act was referred to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties on September 10, 2007

Your privacy is at risk.  You don’t have to be connected to a terrorist investigation to have an FBI file.  Your records can be retained indefinitely.  Your information can be shared within the government and with private businesses.

There are no checks and balances.

If you’re issued one, you can’t talk about it.  Recipients cannot disclose the fact that they have received an NSL or discuss it with anyone other than a lawyer.  Library Connection members were not even allowed to attend their own court case anonymously because of the gag order.

They’re easy to misuse.  Justice Department audit found numerous misuses of NSLs.  FBI internal audit found more than 1,000 instances of misuse.  Businesses are not allowed to challenge NSLs for at least 1 year.  The FBI has been compensating phone companies for access to records.

And the data is easy to misinterpret.

How are libraries affected?  Library Connection court case  ALA’s Resolution on the Use and Abuse of National Security Letters

But don’t worry, it’s not all bad news.  In September 2007, a federal judge ruled that NSLs were unconstitutional.  National Security Letters Reform Act of 2007 has been proposed.

“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” -Benjamin Franklin