30,000 Reasons to Reform the Patriot Act

Lawmakers, journalists and bloggers have all been galvanized by recent revelations about the FBI's extensive use of National Security Letters, which permit the bureau to demand certain types of personal records without any prior judicial review.

Bart Gellman's front page expose in The Washington Post got the attention of Senate leaders from both sides of the aisle. In The New York Times, Republican Senator Tom Coburn voices concerns over the rampant issuance of NSLs. Republican Chuck Hagel is also quoted, saying, "I have always been concerned about centralization of power and eroding individual rights." On Meet the Press, Democrat Ted Kennedy pointed out that the activities described in the article "could happen again tomorrow if the House bill were to be successful in the conference between the House and Senate."

The ACLU is litigating challenges in two NSL cases, now consolidated on appeal in the Second Circuit. We ourselves remain under a strict government gag order, and our client and its representatives are still gagged from adding their firsthand knowledge about NSLs to the now-swirling controversy over the Patriot Act.

There are, however, several things worth noting:

First, the sheer quantity of NSLs now being issued per year is alarming. Tim Edgar, our Legislative Counsel on National Security, told me today, "National Security Letters used to be a small but potent tool in national security investigations, but the Patriot Act and the 2004 Intelligence Act changes that redefined boat dealers, casinos, and pawnbrokers as "financial institutions" have opened the floodgates to 30,000 annual government requests, a hundredfold increase in the use of this shadowy power."

Associate Legal Director Ann Beeson is the person who made the oral arguments last week in the Connecticut case. "With 30,000 NSLs issued in a single year," she told me, "every American should be concerned that their private records have been caught up in the FBI dragnet. Despite the FBI's ongoing efforts to keep secret its expanded spying powers under the Patriot Act, we now know that the FBI is using National Security Letters to demand library, university, financial, Internet and other personal records without court approval."

There are other alarm-bells in the Post article, such as the news about NSL dragnets against casinos and this anecdote about using NSLs as a sledgehammer to get at university records at N.C. State:

David T. Drooz, the university's senior associate counsel, said special authority is required for the surrender of records protected by educational and medical privacy. The FBI's first request, a July 14 grand jury subpoena, did not appear to supply that authority, Drooz said, and the university did not honor it. Referring to notes he took that day, Drooz said Eric Davis, the FBI's top lawyer in Charlotte, "was focused very much on the urgency" and "he even indicated the case was of interest to President Bush."

The next day, July 15, FBI agents arrived with a national security letter. Drooz said it demanded all records of Nashar's admission, housing, emergency contacts, use of health services and extracurricular activities. University lawyers "looked up what law we could on the fly," he said. They discovered that the FBI was demanding files that national security letters have no power to obtain. The statute the FBI cited that day covers only telephone and Internet records.

Soon afterward, the FBI returned with a new subpoena. It was the same as the first one, Drooz said, and the university still had doubts about its legal sufficiency. This time, however, it came from New York and summoned Drooz to appear personally. The tactic was "a bit heavy-handed," Drooz said, "the implication being you're subject to contempt of court." Drooz surrendered the records.

Investigators, he said, "were in a big hurry for obvious reasons" and did not approach the university "in the exact right way."

As Gelman notes, even the FBI knew NSLs could get out of hand. A month after the Patriot Act passed, then-head of the national security law unit told colleagues: "NSLs are powerful investigative tools, in that they can compel the production of substantial amounts of relevant information. … The greater availability of NSLs does not mean that they should be used in every case." Gellman reports that more recently Woods has been "struck by how starkly he misjudged the climate. The FBI disregarded his warning, and no one noticed."

"With 30,000 requests being issued per year for the records of ordinary Americans," Tim Edgar told me, "these letters are now far more common than the national security powers that must face review by the secret court that oversees surveillance. Congress has been almost entirely in the dark about this extraordinary increase in surveillance, and while it is considering a few changes, it has focused much of its attention on other provisions that expire at the end of this year. Whatever happens with the rest of the Patriot Act, Congress should sunset this power so it can thoroughly review it."

The blogs are also on this story. Huffingtonpost.com has this posting. Volokh has this. Librarian.net has this. The Jurist at University of Pittsburgh Law School has this.