Taking Liberties: The War on Terror and the Erosion of American Democracy (30 page)

The new gag provision, however, was only a very minimal improvement, replacing some major constitutional flaws with different but equally significant constitutional flaws, and so Nick and the ACLU continued to litigate. In this second round, both the District Court and Court of Appeals agreed that the new protocol was still unconstitutional because it imposed too great a burden on the recipient and still gave too much unilateral authority to the government.
³¹
By this time, the Inspector General’s damning report had been published, so the fact that executive branch officials still got to make final decisions about who was allowed to speak and who wasn’t, without any judicial review, now seemed more than theoretically problematic. What was to prevent the FBI from using its discretion in an arbitrary or discriminatory fashion?
³²
The answer, to Marrero, was that this was the job of the courts. “[W]hen the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of liberty.”
³³
His skepticism about the FBI’s capacity for limiting itself proved justified here too. Nothing in the statute prevented the FBI from exercising its discretion so that very little changed, despite the amendment. The Inspector General reported that after the 2005 revisions, despite internal guidance telling agents not to use gag orders reflexively, the FBI continued to impose gag orders in connection with 97 percent of all National Security Letters.
³⁴

The Obama Administration had continued to fight to uphold the statutory gag order but did not ask the Supreme Court to review the ruling on
the gag orders. The FBI agreed to comply with the court’s interpretation of the First Amendment as a matter of internal policy.
³⁵
But the new decision still did not allow Nick Merrill to identify himself.

Fourth Amendment Rights for NSL Recipients

Nick contended that the NSL process also violated the Fourth Amendment rights of his clients. The
Smith
and
Miller
cases (described in
chapter 7
), however, had theorized that by sharing information with one’s bank or telephone company, one has forfeited any reasonable expectation of privacy and therefore has no Fourth Amendment rights if the government then demands that information. Judge Marrero accepted the conclusion of other courts that this assumption of risk theory would also apply to information shared with an Internet service provider like Nick’s company, Calyx, and so his clients were deemed to have no Fourth Amendment right protecting the privacy of their information.
³⁶
But Judge Marrero thought that Nick himself had a Fourth Amendment right to ask a court to review whether the NSL served on him was unreasonable or oppressive to him
³⁷
—a right George Christian also might have exercised after he realized that the demand made of him could entail turning over names of thousands of Connecticut library patrons. The government was attempting to seize information from records in his possession, and the statutes governing the NSL did not provide the customary safety valve for the recipient of a demand for information—the right to ask a court to quash or modify that demand. Without any prospect of judicial review, the government might demand an oppressive amount of material, or might target someone as an NSL recipient for arbitrary or discriminatory reasons. Due to Judge Marrero’s decision on this issue, future John Does no longer have to worry about whether it is permissible for them to consult a lawyer or a court. Congress was impressed by the judge’s conclusions on this front too, and during the 2005 reauthorization hearings amended the statute by explicitly providing a right for recipients to seek judicial review of an NSL if they want to claim that a demand for information violates their own rights.
³⁸

Nick and the ACLU had won this second victory in both the courts and Congress because, unlike the judge in the
Muslim Community Association
case described in
chapter 7
(challenging the constitutionality of Section 215 orders to turn over records), Judge Marrero did not hang back and wait to see whether Congress might do something to fix the statute’s constitutional defects on its own. He played the role federal judges
are supposed to play in our national dialogue about what constitutional rights mean, and Congress responded, as did the Department of Justice. Six months after the Second Circuit dismissed the government’s appeal on the judicial review issue as moot in light of Congress’s action,
³⁹
the government dropped its original demand for information about John Doe’s client.
⁴⁰
Thus, in all three of the cases where NSL recipients contested the demands made of them—Library Connection, the Internet Archive, and Nick Merrill’s pioneering John Doe case—the government decided not to pursue its NSLs when challenged. What might this suggest about the utility of NSLs? Has the government backed down in the face of every challenge so far because the FBI actually has adequate alternatives to this shortcut process, or is it perhaps because there have been so few challenges that the few demands meeting opposition are easy enough to write off?

First Amendment Rights for Internet Users

Under the terms of the 2010 settlement, the gag order still prevents Nick from saying anything about the client who was the subject of the NSL—a prohibition he entirely respects. But Judge Marrero also recognized that clients’ and all Internet service clients’ First Amendment rights, finding that Internet users have a right to anonymity grounded in the First Amendment guarantees of freedom of speech and association. He then ruled that this right is compromised by the overly easy availability of NSLs.

[T]he FBI theoretically could issue to a political campaign’s computer systems operator a § 2709 NSL compelling production of the names of all persons who have email addresses through the campaign’s computer systems. The FBI theoretically could also issue an NSL under § 2709 to discern the identity of someone whose anonymous online web log, or “blog,” is critical of the Government. … These prospects only highlight the potential danger of the FBI’s self-certification process and the absence of judicial oversight.
⁴¹

At the time this case was brought, the FBI seemed to assume that NSLs could be used to obtain information about the websites an ISP’s customer had visited and the addresses for all e-mails sent and received. As noted above, a 2008 Office of Legal Counsel memo subsequently disavowed
that interpretation.
⁴²
Because the Obama Administration has asked for the scope of NSLs to be expanded (or restored, according to proponents), it is worth considering just what’s at stake if the reach of NSLs is again extended to website and e-mail logs. As Judge Marrero observed:

NSLs can potentially reveal far more than constitutionally-protected associational activity or anonymous speech. By revealing the websites one visits, the Government can learn, among many other potential examples, what books the subscriber enjoys reading or where a subscriber shops. As one commentator has observed, the records compiled by ISPs can “enable the government to assemble a profile of an individual’s finances, health, psychology, beliefs, politics, interests, and lifestyle.”
⁴³

Another commentator noted that the amount of information at issue could expand exponentially depending on the definition of who is an “electronic communications service provider” and therefore eligible to be served with an NSL instead of a court order:

Consider that the definition of “electronic communications service providers” doesn’t just include ISPs and phone companies like Verizon or Comcast. It covers a huge range of online services, from search engines and Webmail hosts like Google, to social-networking and dating sites like Facebook and Match.com to news and activism sites like RedState and Daily Kos to online vendors like Amazon and Ebay, and possibly even cafes like Starbucks that provide WiFi access to customers.
⁴⁴

Another vast dragnet. If Judge Marrero is right that the
Smith/Miller
assumption of risk cases leave Internet users without any Fourth Amendment rights, and if the Supreme Court neither overrules nor distinguishes the
Smith/Miller
cases in this context, Congress will be deciding whether or not to extend or reform NSLs without any possibility of a judicial second opinion.

The Inspector General Exposés, 2007–2010

The 2005 Patriot Act reauthorization hearings took place before there was any real data about the use or abuse of NSLs for Congress to consider, and without testimony from any of the five John Does who wanted to participate
in the legislative process. Attorney General Gonzales testified that he was not aware of any abuses of the Patriot Act authorities.
⁴⁵
He was about to learn a great deal from the Inspector General of his department.

One of the most important decisions Congress made in connection with the 2005–2006 Patriot Act reauthorization was to ask Department of Justice Inspector General Glenn Fine to review the FBI’s use of its NSL authority and to prepare a public report. Fine’s first report, published in March 2007 and weighing in at 199 pages (including a 50-page executive summary), was a shocker. Congress had quite modestly asked to monitor the numbers of NSLs used and the number of United States persons (FISA’s term for American citizens and residents) involved.
⁴⁶
But it turned out that the FBI had been providing inaccurate reports on the number of NSLs it used for the simple reason that no one was keeping track. Fine estimated that 22 percent more NSL requests had been issued than the totals the FBI had supplied.
⁴⁷
This report published, for the first time, the number of NSL requests (a higher number than the NSLs because many letters include more than one request for information) as amounting to hundreds of thousands from 2001–2007—even more than the 30,000 per year Barton Gellman had reported (to indignant denials).
⁴⁸
The FBI reports to Congress had also seriously understated the number of “United States persons” whose information was sought through NSLs, even though such requests had grown to more than 50 percent of the total. Furthermore, the report concluded that, despite Gonzales’s reassuring assertion that he was not aware of any abuses, over 60 percent of the files reviewed showed violations of one or more FBI internal control policies and 22 percent revealed violations the FBI had failed to report to its own executive branch watchdogs. The report also found that even if information obtained under NSLs cleared a target of suspicion, it remained in the databases available for later data mining, regardless of whether it involved an innocent person or a “United States person.”
⁴⁹
What the report did not find, according to ACLU policy counsel Michael German, formerly with the FBI, was much concrete evidence that the hundreds of thousands of NSL requests had resulted in catching any terrorists.
⁵⁰
The Inspector General had difficulty finding any evidence to suggest that the use of NSLs was productive
⁵¹
because the FBI did not keep records that would allow that kind of assessment.

Two weeks later, answering questions about this stinging report before a bipartisanly irate House Judiciary Committee, Fine estimated that there had been about 3,000 violations and abuses by the FBI in its first four years of experience with the Patriot Act–improved NSL.
⁵²
The FBI’s General
Counsel, in her own testimony, described this as “an F report card.”
⁵³
Evidently, allowing the FBI to police itself behind closed doors was just as bad an idea as the framers of the Fourth Amendment, Nick Merrill, and Victor Marrero had thought.

Alarming revelations about how the FBI had been misusing its NSL powers did not end there. It turned out that some agents had taken to using Post-it notes as a substitute for NSLs. One reason more recipients do not challenge NSLs is that a large percentage of the requests go to major telecommunications providers, which do not need to be forced to cooperate. Fine found that FBI agents in field offices, especially in the New York office, had developed a cozy relationship with some of these repeat players. Expecting that compliance with their demands would be routine, some agents began to take shortcuts, requesting subscriber information by e-mail, and even by Post-it note. This level of informality meant that these requests were not reviewed or documented even within the FBI. Fine’s January 2010 report revealed that the FBI had circumvented even the minimal administrative procedures required to use an NSL in some 2,000 requests for information.

One technique agents used to avoid the internal NSL process and get information immediately was to issue “exigent letters,” a streamlined procedure designed to dispense with the administrative NSL process in case of emergency. Fine discovered that FBI agents frequently issued exigent letters when there was clearly no emergency, promised recipients that subpoenas would follow when no subpoenas had been requested, and issued blanket NSLs to cover up for the fact that they had already received the requested information through unauthorized use of exigent letters.
⁵⁴
Among those whose telephone numbers were obtained through exigent letters were reporters for the
New York Times
and
Washington Post
,
⁵⁵
highlighting the potential of NSLs to be used to silence critics, whether those critics are reporters or John Does.
⁵⁶
It seems that after reviewing a draft of the Inspector General’s highly negative 2010 report on the FBI’s misuse of exigent letters, the FBI asked the Department of Justice’s elite Office of Legal Counsel for an opinion on the legality of its actions. Evidently, the OLC’s opinion, issued about two weeks before the IG’s report was published, retroactively declared that the use of exigent letters had been proper.
⁵⁷
But the OLC opinion itself is secret, so it is impossible to evaluate.