Monday, August 2, 2010

National Security Letters and Our Expanding Surveillance State

I know I must start sounding like a broken record with each new Obama disappointment on issues related to privacy and civil liberties. But alas, these issues simply don't receive deserved attention, and condemnation, from the media, or even the left.

The latest news - that the Department Of Justice has been pressuring Congress to expand its power to obtain records of Americans' private Internet activity through the use of National Security Letters (NSLs) - is just part of a much larger trend that paints a disturbing narrative, a narrative that points in one direction only: an increasingly intrusive surveillance state with an Executive Branch getting dangerously close to being above the law.

Before I get to these recent revelations - representing another major promise by the President on surveillance being broken - let's take a quick look back at some of the other recent "privacy eviscerating" greatest hits.

We had Homeland Security Secretary Janet Napolitano’s recent full throated endorsement of Whole Body Imaging machines (“digital strip search) and the expansion of the the government's wiretapping and Internet monitoring capabilities (which this latest news seems to have taken a bit further).

If we go back and remember the dark days of the Bush Administration, we might reminisce about the consistent, vehement, and vocal opposition from the left to Bush assaults on privacy and the constitution, from eavesdropping, to indefinite detention, to the use of state secrets to stifle dissent, to the Patriot Act abuses, and so on, and so forth.

This vehement opposition was of course warranted, and important. But now that Obama is President, and CONTINUING THESE POLICIES, the same outcry that once existed has become a whimper.

As I wrote on this blog a few months ago, "No, I'm not talking about groups like the ACLU or EFF, but certainly Democrats in Congress, left wing talk radio, and even newspaper editorial boards.

And why is this silence so damaging? Because a so called "liberal" President, a constitutional scholar no less, has now codified what just a few years ago were rightly considered radical attacks on the Constitution and Rule of Law. Now those very same policies have not only been embraced by the new President, but has been accepted by the Democrats in Congress!! In other words, the ball has just moved WAY towards the neoconservative worldview, and their interpretation of an all powerful Executive Branch.

Its astonishing how little people on the left have come to grips with the fact that on issues ranging from indefinite detention to rendition to wiretapping to ASSASSINATION OF AMERICAN citizens to use of state secrets to defend Bush Administration civil liberties assaults (something Obama rightly criticized as a candidate) to now OPPOSING whistleblower protections (which he advocated in support of as candidate) to his embrace of all the key Patriot Act provisions he so adamantly criticized as a candidate (and recently even fought behind the scenes to ensure NO REFORMS were added that might protect civil liberties) the President is no different, whatsoever, than Bush.

The concern of course is that once these expanded surveillance powers (and others) are accepted, even codified, by the "left" no less, they are untouchable...and what were once considered inalienable rights, are now gone, for good.

This is my fear, and I don't think its at all an irrational one. So let's get to the latest. As the New York Times noted in a blistering editorial criticizing the President's flip flop on surveillance:

It is just a technical matter, the Obama administration says: We just need to make a slight change in a law to make clear that we have the right to see the names of anyone’s e-mail correspondents and their Web browsing history without the messy complication of asking a judge for permission.

It is far more than a technical change. The administration’s request, reported Thursday in The Washington Post, is an unnecessary and disappointing step backward toward more intrusive surveillance from a president who promised something very different during the 2008 campaign.

In a 1993 update to the Electronic Communications Privacy Act, Congress said that Internet service providers have to turn over to the F.B.I., on request, “electronic communication transactional records.” The government says this includes the e-mail records of their subscribers, specifically the addresses to which e-mail messages were sent, and the times and dates. (The content of the messages can remain private.)

It may also include Web browsing records. To get this information, the F.B.I. simply has to ask for it in the form of a national security letter, which is an administrative request that does not require a judge’s signature.

But there was an inconsistency in the writing of the 1993 law. One section said that Internet providers had to turn over this information, but the next section, which specified what the F.B.I. could request, left out electronic communication records. In 2008, the Justice Department’s Office of Legal Counsel issued an opinion saying this discrepancy meant the F.B.I. could no longer ask for the information. Many Internet providers stopped turning it over. Now the Obama administration has asked Congress to make clear that the F.B.I. can ask for it.

These national security letters are the same vehicles that the Bush administration used after the Sept. 11, 2001, attacks to demand that libraries turn over the names of books that people had checked out. The F.B.I. used these letters hundreds of thousands of times to demand records of phone calls and other communications, and the Pentagon used them to get records from banks and consumer credit agencies. Internal investigations of both agencies found widespread misuse of the power, and little oversight into how it was wielded.

President Obama campaigned for office on an explicit promise to rein in these abuses. “There is no reason we cannot fight terrorism while maintaining our civil liberties,” his campaign wrote in a 2008 position paper. “As president, Barack Obama would revisit the Patriot Act to ensure that there is real and robust oversight of tools like National Security Letters, sneak-and-peek searches, and the use of the material witness provision.”

Where is the “robust oversight” that voters were promised? Earlier this year, the administration successfully pushed for crucial provisions of the Patriot Act to be renewed for another year without changing a word. Voters had every right to expect the president would roll back authority that had been clearly abused, like national security letters. But instead of implementing reasonable civil liberties protections, like taking requests for e-mail surveillance before a judge, the administration is proposing changes to the law that would allow huge numbers of new electronic communications to be examined with no judicial oversight.

Its these national security letters that allow the FBI to secretly demand data from phone companies and internet service providers about the private communications of ordinary citizens - in mass! But that's not all, the letters include a gag order, which forbids recipients from ever revealing the letters' existence to their coworkers, their friends, or even to their family members, much less the public.

As pointed out by the Electronic Frontier Foundation, "The gag order and the lack of oversight make this power ripe for abuse. Indeed, the FBI's systemic abuse of this power was confirmed both by a Department Of Justice investigation and in documents obtained by EFF through Freedom of Information Act litigation. Yet, in the years since that abuse became publicly known, there has been no reform of the law governing NSLs.

Now, the DOJ is asking Congress to pass vague and broad new language meant to expand the kinds of data that can be acquired through NSLs. This morning's Washington Post article suggests that the new language could allow access to detailed web browsing history, search history, location information, or even Facebook friend requests.

Considering the FBI's dismal record on surveillance abuses, this is a stunning and brazen request. They're asking Congress to reward bad behavior by allowing even more bad behavior. We're hoping that Congress will have the courage and integrity to turn them down.

Pete Yost goes into greater detail on whether this is only a "clarification" of the law, or an expansion, writing:

The bureau engaged in widespread and serious misuse of its authority to issue the letters, illegally collecting data from Americans and foreigners, the Justice Department's inspector general concluded in 2007. The bureau issued 192,499 national security letter requests from 2003 to 2006.

Weathering that controversy, the FBI has continued its reliance on the letters to gather information from telephone companies, banks, credit bureaus and other businesses with personal records about their customers or subscribers — and Internet service providers.

That last source is the focus of the Justice Department's push to get Congress to modify the law.

The law already requires Internet service providers to produce the records, said Dean Boyd, a spokesman for the Justice Department's national security division. But he said as written it also causes confusion and the potential for unnecessary litigation as some Internet companies have argued they are not always obligated to comply with the FBI requests.


The administration's proposal to change the Electronic Communications Privacy Act "raises serious privacy and civil liberties concerns," Leahy said Thursday in a statement.

"While the government should have the tools that it needs to keep us safe, American citizens should also have protections against improper intrusions into their private electronic communications and online transactions," said Leahy, who plans hearings in the fall on this and other issues involving the law.

Critics are lined up in opposition to what the Obama administration wants to do.

Critics, however, point to a 2008 opinion by the Justice Department's Office of Legal Counsel which found that the FBI's reach with national security letters extends only as far as getting a person's name, address, the period in which they were a customer and the numbers dialed on a telephone or to that phone.

The problem the FBI has been having is that some providers, relying on the 2008 Justice opinion — issued during the Bush administration — have refused to turn over Internet records such as information about who a person e-mails and who has e-mailed them and information about a person's Web surfing history.

To deal with the issue, there's no need to change the law since the FBI has the authority to obtain the same information with a court order issued under a broad section of the Patriot Act, said Gregory Nojeim, director of the Project on Freedom, Security and Technology at the Center for Democracy and Technology, a nonprofit Internet privacy group.
In other words, this is simply about removing one last protection we have from FBI surveillance abuses, namely, federal judges and courts and the scrutiny they could supply to requests for sensitive information made by the government. We know, for a fact, that under the Bush Administration the VAST MAJORITY of Patriot Act abuses had nothing to do with terrorism, or trying to actually catch terrorists or stop terrorist acts.

No, what makes this kind of expansion of surveillance capabilities so dangerous is that they are more often than not used to target political enemies (think peace protesters, anti-globalization protesters) or just small time drug dealers. Let's hope the President does not get rewarded the same way his predecessor did every time he starts crying about the big bad terrorist wolf.

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