Taking Liberties: The War on Terror and the Erosion of American Democracy (29 page)

Although the law did change in some respects as a result of Nick’s litigation, the central problem remains: NSLs still allow the FBI to collect a great deal of information about innocent people and to avoid the courts. And Barack Obama has embraced this power. Obama changed his position on National Security Letters with his change of position from candidate to president, even asking Congress to expand the scope of information NSLs can command.
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Why National Security Letters?

When the first procedure resembling a National Security Letter was created, it was, ironically enough, as part of the 1978 Right to Financial Privacy Act
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(Congress’s response to the
Miller
case’s declaration that financial records were not protected by the Fourth Amendment at all). The statute provided procedural protection for financial records but created a narrow exception allowing specific executive agencies to invite “financial institutions” to share limited kinds of credit information about suspected terrorists or spies.
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These invitations were designed to be a less coercive alternative to court orders. The point of the exception was just to assure custodians that if they provided their customers’ records in response to a national security investigation, they would not be liable for violating federal privacy law.
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This was another legislative baby step.

The authors of this exception probably would not recognize the vast, coercive power the NSL has become today. The statute under which most NSLs are issued currently, the Electronic Communications Privacy Act (ECPA), was also written to protect privacy—the privacy of electronic communications after the
Smith
case (which permitted government to demand telephone company records at will) left information like telephone logs outside the Fourth Amendment’s umbrella. The ECPA also allowed a narrow exception to its privacy protections, authorizing the use of NSLs to require electronic communication service providers to turn over subscriber information, billing records, and “electronic communication transactional records,”
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a term the statute does not define. This is the section covering libraries that offer their patrons computers and, of course, Internet service providers.
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NSLs can obviously scoop up an enormous quantity of information in either area—financial records or electronic communications records. As Barton Gellman’s 2005
Washington Post
exposé, “The FBI’s Secret Scrutiny: In Hunt for Terrorists, Bureau Examines Records of Ordinary
Americans,” reported and the mayor of Las Vegas deplored, the FBI used NSLs to gather information from car rental companies, casinos, and other “financial institutions,” concerning the activities of nearly a million people who had visited Las Vegas during a certain time period. Internet service providers like AOL, as Nick says, have access to vast quantities of information about their subscribers—and what if the term “electronic service provider” is deemed to cover Internet hosts like Google, social network providers like Facebook, and perhaps even cafés and businesses that, like Starbucks or Delta Airlines, offer WiFi access to their customers?
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That’s why it matters that Congress kept lowering the standard for using an NSL. Like the FISA provisions that applied to Brandon Mayfield (the mismatched fingerprint case), the original NSL provisions in the Financial Privacy and Electronic Communications Acts distinguished between ordinary Americans on the one hand, and “foreign” spies or terrorists on the other. To use an NSL, agents had to have “specific and articulable facts” that their target was a foreign power or a foreign power’s agent, the kind of individualized suspicion requirement that applied in the
Mayfield
case. All other Americans were exempt from this convenient form of surveillance.
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In 1993, Congress relaxed the standard for getting an NSL
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and then, in October 2001, the Patriot Act went a giant step further and removed the suspicion requirement altogether. The combination of these amendments allowed agencies to gather data about Americans they don’t actually find suspicious at all if they think information about those people might lead to information about terrorists or spies. FBI agents now only have to certify that the information they seek is “relevant” to a counterterrorism or counterintelligence investigation.
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They certify this to themselves. FBI agents do not have to persuade a court that information they want is relevant to a terrorism investigation, but only their colleagues, and those colleagues may view “relevance” as a very easy standard to satisfy. One model FBI request to be submitted for a supervisor’s signature consisted of one sentence: “This subscriber information is being requested to determine the individuals or entities that the subject has been in contact with during the past six months.”
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Lowering the threshold encouraged the proliferation of NSLs; as previously noted, the numbers climbed into the hundreds of thousands.
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Other factors also contributed to the phenomenal growth in the use of NSLs post-9/11. The Patriot Act made this power more widely available by allowing the fifty-six FBI field offices to issue their own NSLs instead of only high officials in the central FBI office, as the law had previously required. Attorney General guidelines were changed in January 2003 to allow NSLs to be used in preliminary
investigations instead of only in full investigations.
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And exacerbating the Big Brother aspect of all this data collection, Attorney General Ashcroft rewrote the applicable Department of Justice guidelines to allow greater retention and sharing of the data collected—regardless of whether anything suspicious was actually found.
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Databases could be stuffed with information about innocent people as long as someone once thought that collecting information about those people might lead to evidence about someone else. As the Mayfield family discovered, once information was collected, it was in the data banks to stay. And since no court—not even the FISA court—is involved when NSLs are used, there is not even an opportunity for judicial review of the scope of the information gathered, retained, or disseminated.

The scope of the information NSLs can amass has also exploded since 1986 because of the growth of the Internet and the increasingly central role “electronic services” like computers play in people’s lives. Although it has not always been clear whether or not agents can obtain website use and e-mail address information using NSLs, Internet service providers can certainly be required to furnish the FBI with a subscriber’s name, address, telephone number, account name, e-mail headers, credit card and billing information, and transaction/activity logs. The FBI used its authority, at least until quite recently, to gather data not only about people actually suspected of some sort of terrorist activity, but also about any target’s “community of interest”—the entire network of people who had contact with the target.
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This astonishingly vast power was virtually untethered. The courts could not serve as a check since there is no provision for judicial involvement. Unlike Section 215, the Patriot Act provision expanding NSL authority did not sunset. The only legislative oversight required was the submission of a semiannual classified report to congressional intelligence and judiciary committees.
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But even those reports were secret and NSL recipients themselves were gagged. The public and the rest of Congress were left in the dark and the FBI evidently was left to police itself—until Nick Merrill came along.

John Doe and Victor Marrero

Are National Security Letters unconstitutional? The litigation Nick Merrill and the ACLU brought established that the Patriot Act provision involved violated Nick’s First Amendment rights by indiscriminately gagging him, and the First Amendment rights of his Internet clients—to preserve their anonymity in using the Internet—by subjecting them to government
scrutiny without a court order. This happened because Nick’s case was randomly assigned to a federal judge who was willing to take on hard constitutional questions and evaluate vociferous government demands for secrecy. Most other judges had blinked when confronted with Patriot Act challenges. (When Nick was finally allowed to reveal his identity, he commented wistfully that he wished he could someday meet Judge Marrero, who had presided over his case for years. Like the Library Connection Four, Nick had been instructed by his lawyers not to attend any judicial proceeding where he might be identified.)

Victor Marrero was born in Santurce, Puerto Rico, and was serving as the United States Permanent Representative to the Organization of American States when President Bill Clinton selected him, in 1999, to fill the seat in the Southern District of New York vacated by Sonia Sotomayor, who had just been elevated to the Court of Appeals. His experience with
John Doe v. Ashcroft
began with having to mediate disputes about how deeply secret this litigation would be. Under the mosaic theory (that any bit of information might become dangerous when combined with other bits), the government did not want a single piece of information about the case to be made public. Judge Marrero concluded that it would not compromise national security for the public to know that this cryptically named lawsuit existed. Allowing the lawsuit to be conducted in secret would have conflicted with the Constitution’s view of the importance of the right of public access to judicial proceedings. But when the ACLU then posted a cautious press release on its website, the government demanded removal of innocuous material like the court’s briefing schedule and a description of National Security Letters that scrupulously tracked the language of the statute. Judge Marrero had to issue another ruling declaring which details could be posted.
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Battles over redaction continued throughout the case, with the government insisting that the ACLU withdraw a sentence that described its anonymous client’s business as “provid[ing] clients with the ability to access the Internet” and a direct quote in a brief from a Supreme Court case.
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One of the lawyers on the case, Ann Beeson, remarked on the irony that the government was using the Patriot Act to silence people who questioned the Patriot Act, even in court.

Loosening the Gag

Judge Marrero agreed with Nick and the ACLU that the statute’s automatic, absolute, and permanent gag order violated the First Amendment. While noting that judges are not national security experts and so
“the Government should be accorded a due measure of deference when it asserts that secrecy is necessary for national security purposes in a
particular situation
involving
particular persons
at a
particular time
,” Marrero reasoned,

[h]ere, however, the Government cites no authority supporting the open-ended proposition that it may universally apply these general principles to impose perpetual secrecy upon an entire category of future cases whose details are unknown and whose particular twists and turns may not justify, for all time and all places, demanding unremitting concealment and imposing a disproportionate burden on free speech.
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Contending with the government’s asserted need for utter secrecy were First Amendment values: “[D]emocracy abhors undue secrecy, in recognition that public knowledge secures freedom.”
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Marrero also recognized that too much secrecy could create other kinds of problems:

[A] categorical and uncritical extension of non-disclosure may become the cover for spurious ends that government may then deem too inconvenient, inexpedient, merely embarrassing, or even illicit to ever expose to the light of day. At that point, secrecy’s protective shield may serve not as much to secure a safe country as simply to save face.
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It was virtually unprecedented for such a gag order to apply in circumstances where no court had authorized the method of investigation in question, and Marrero thought that the self-service nature of NSLs would increase the likelihood of secrecy concealing abuses of power.
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Using National Security Letters, the FBI gets to decide what records to seek, make its demands without getting any second opinion, and then require everyone who knows what they are doing never to tell anyone. This, to Marrero, looked like a dangerous combination. When the Justice Department’s Inspector General later studied how National Security Letters were actually being used behind closed doors at the FBI, Marrero’s analysis proved prescient.

The government appealed his decision. While the appeal was pending, Congress held the 2005–2006 debates on whether to reauthorize the expiring Patriot Act provisions. Although the National Security Letter
authority was not one of the provisions slated to sunset, Victor Marrero’s decision in the
John Doe
case (even though it was pending appeal) was a subject of significant discussion on the floor of Congress
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and led to several amendments of that authority. Heeding the opinion’s reasoning on the First Amendment issue, Congress revised the nondisclosure provision covering NSLs (as well as in Section 215) to make gag orders discretionary instead of automatic. To justify a gag order under the revisions, a special agent would have to certify that disclosure of the request might result in danger to national security, interference with an FBI investigation, or danger to any person—in that particular case, as Victor Marrero had said the First Amendment required. Congress also added a provision allowing a recipient to go to court to challenge the scope or duration of a gag order—but then eviscerated the court’s authority to decide such challenges by requiring the court to defer to an FBI certification that the gag order is still necessary.
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And having finally seen an example of resistance, Congress also added an explicit penalty for violation of the gag order—five years’ imprisonment and a fine.
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