The FBI (or NSA?)’s Bulk National Security Letters

Say, did you notice that the NSA Review Group, like the Leahy-Sensenbrenner bill before it, endorsed dramatic restrictions on National Security Letters?

Both efforts set out to address the most extreme privacy risks posed by — the perception was — the NSA, yet both would impose new rules on NSLs, which are primarily used by the FBI. And both efforts would attempt to at least limit (and therefore presumably end) any bulk collection with NSLs.

Leahy-Sensenbrenner provides specific changes to both the statute authorizing communications collection and the one authorizing financial data collection. In the case of toll records, the changes look like this:

Required Certification.— The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director may request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that—

(1) the name, address, length of service, and toll billing records sought are relevant and material to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the First Amendment to the Constitution of the United States; and

(2) there are reasonable grounds to believe that the name, address, length of service, and toll billing records sought pertain to—

(A) a foreign power or agent of a foreign power;

(B) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(C) an individual in contact with, or known to, a suspected agent of a foreign power. [my emphasis]

In addition, Leahy-Sensenbrenner would make NSL gags harder to sustain.

The Review Group went even further with respect to the basic NSL requests. It recommended (as its 2nd and 3rd recommendations, stuck right in the middle of its Section 215 discussion!) not only limiting bulk collection with NSLs, but requiring judicial review and adding minimization procedures to them.

Recommendation 2 We recommend that statutes that authorize the issuance of National Security Letters should be amended to permit the issuance of National Security Letters only upon a judicial finding that:

(1) the government has reasonable grounds to believe that the particular information sought is relevant to an authorized investigation intended to protect “against international terrorism or clandestine intelligence activities” and

(2) like a subpoena, the order is reasonable in focus, scope, and breadth.

Recommendation 3 We recommend that all statutes authorizing the use of National Security Letters should be amended to require the use of the same oversight, minimization, retention, and dissemination standards that currently govern the use of section 215 orders. [my emphasis]

There are two possible reasons why Leahy-Sensenbrenner and the Review Group would offer such similar reforms. First, it’s possible they worry that limiting bulk collection on Section 215 without limiting it on NSLs would lead the government to use NSLs instead.

Far more likely, both would propose such reforms because they know NSLs had already been used for bulk collection. (We know DOJ used bulk NSLs in its efforts to fix its exigent letter problems, but that involved just 3 bulk orders, all 3 issued in 2006.)

Which would be alarming because — as the Review Group points out — in FY2012 (which extends from October 1, 2011 to September 30, 2012), the FBI issued 21,000 NSLs, “primarily for subscriber information.” DOJ’s reports to Congress reported 16,511 NSL requests in 2011 and 15,229 in 2012 that weren’t subscriber information only, so roughly 5,500 of that 21,000 were just subscriber information. But the FBI could very well be issuing bulk orders for both toll records and financial records.

That’s a lot of potential bulk orders.

And, as the Review Group makes clear in its list of reasons the NSLs are ripe for abuse, the FBI doesn’t treat this data with the same care that NSA purportedly treats the phone dragnet data.

[T]he oversight and minimization requirements governing the use of NSLs are much less rigorous than those imposed in the use of section 215 orders.

So data from potentially thousands of bulk orders, covering both toll and financial records, may be sitting on FBI’s servers, with few access, dissemination, and age-off restrictions.

No wonder the Review Group thinks the NSLs should be subject to the same kind of judicial scrutiny as the other laws repurposed for bulk collection.

There is one final—and important— issue about NSLs. For all the well-established reasons for requiring neutral and detached judges to decide when government investigators may invade an individual’s privacy, there is a strong argument that NSLs should not be issued by the FBI itself. Although administrative subpoenas are often issued by administrative agencies, foreign intelligence investigations are especially likely to implicate highly sensitive and personal information and to have potentially severe consequences for the individuals under investigation. We are unable to identify a principled reason why NSLs should be issued by FBI officials when section 215 orders and orders for pen register and trap-and-trace surveillance must be issued by the FISC.

Which is precisely the reason why the Administration is fighting this.

While the focus on reforms Obama may reject has centered on the phone dragnet collection, anonymous sources are also saying the government can’t accept the Review Group proposal for NSLs.

Civil liberties groups would like Obama to rein in the government’s use of so-called “national security letters,” which allow the FBI and other agencies to compel individuals and organizations to turn over business records without any independent or judicial review.

A senior administration official said no final decisions had been made yet, but some operational agencies have concerns about limiting the use of these letters because it would raise the bar for intelligence investigations above that for criminal ones.

Which is understandable, so long as you ignore the high likelihood these are bulk orders. But once you imagine how many Americans’ records this might include if any significant number of NSLs are bulk orders, then it seems utterly shocking no judge reviews the requests.

That’s presumably one of the reasons the Administration wants to rush through its recommendations before we think too hard about the implications of bulk NSL orders.

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11 replies
  1. Anonsters says:

    Editorial Quibble. This is an odd sentence:

    Which would be alarming because — as the Review Group points out — in FY2012 (which extends from October 1, 2011 to September 30, 2012), the FBI issued itself 21,000 NSLs, “primarily for subscriber information.”

    It makes it sound like the FBI was issuing NSLs to itself (whereas I know you intended “itself” in the reflexive/intensive sense). So, “…the FBI itself issued….”

  2. Cujo359 says:

    Which is understandable, so long as you ignore the high likelihood these are bulk orders. But once you imagine how many Americans’ records this might include if any significant number of NSLs are bulk orders, then it seems utterly shocking no judge reviews the requests.

    We should worry about individual cases, too, of course. As we’ve seen with some recent scandals like Spitzer and Weiner, it doesn’t take a criminal prosecution to end a political career that’s uncomfortable to someone in power.

    Anyway, I’ve always viewed NSA’s role as more that of a “technician” – after someone else comes up with the need, they just figure out how to get it done. I’m sure that’s an incomplete view of its role with all the post-9/11 expansion, but no one should be surprised if those NSLs turn out to have come from some other three letter agency.

  3. Anonsters says:

    @Cujo359:

    I used to view the military that way, having grown up in a military household and having been given that impression by my childhood environment. Then I realized what a pipe dream that is.

  4. TarheelDem says:

    The more this unfolds, the more convinced I am that Congress cannot nibble this into some sort of Constitutional compliance. The poisoned roots go back to the Truman administration. That whole philosophy of how to do intelligence and national security turns out to be dramatically and inevitably unconstitutional. Unless we are going to sacrific the Bill of Rights completely. What Leahy-Sensenbrenner does is give the agency legal counsels a new game to play.

  5. spongebrain says:

    Per Leahy-Sensenbrenner:

    “…provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the First Amendment to the Constitution of the United States;”

    And per the NSA Review Group:

    “…foreign [and in my opinion domestic although that’s probably not within the NSA’s purported purview] intelligence investigations are especially likely to implicate highly sensitive and personal information and to have potentially severe consequences for the individuals under investigation.”

    When (and not “if” as it is said, “truth wants to be free”) the extent to which NSLs with little or no oversight have been used as all-too-convenient launch pads for the disruption of dissenting but nevertheless law-abiding citizens’ lives, many will be shocked. Much has been revealed about the broad capabilities of various clandestinely operated programs, i.e., at the macroscopic level, but little about how information gleaned from them is misused, e.g., at the micro level, to target, disrupt and even ruin the lives of selected individuals whose only “crime” is to have had the nerve to voice their disagreement with certain imperial policies. War, say. The systemic, unrelenting harassment of Laura Poitras while traveling is a fairly well-known example, but the writing on the wall despite much of it still being in invisible ink suggests there are many many more. Most of whom I suspect don’t possess Laura’s intelligence, tenacity and moral courage. Most of whom I suspect instead opt to close their mouths, fold their hands, and hope for the best.

    Even though for the time being much at the micro level remains hidden from public view, the above-quoted phrases are welcome. They not only imply an awareness of specific abuses by those in position to influence the policy and lawmaking process, but also indicate a desire to reduce the potential for more.

    EW has of late touched on the fact that secretly gathered data is used to target potential informants. It’s used to recruit and, in some cases, enslave them. (When thinking of informants I include agents provocateur, as the “work” they do often goes hand in hand.) But it “works” the other way, too. Secretly gathered data is also used to harvest dissenting individuals for informants and agents to target. The fear factory requires an endless supply of “terrorists.” The raw material for absolute power, and thus limitless wealth for those who produce it, is human. When the supply of “terrorists” is insufficient to keep the factory from producing fear at full capacity, which is most of the time, the only option other than accepting insufficient fear is to manufacture them. It’s a matter of vertical integration. NSLs, because there are so very few restrictions with so little oversight, are ideally suited as a basis for foraging for the necessary human material.

    They’re playing with fire, though. Murphy’s Law says that one of these days, one of those little plots the government cooks up — using informants, agents and half-wit, socially inept targets harvested for the “stew” — is going to get out of hand. Before the “plot” can be “thwarted.” Before the target can be arrested. And before the “news” the public was never in any danger would have been trumpeted.

    If one, or two, or more, haven’t already.

  6. anon says:

    The way it works is like this. NSA does not freelance. Pretends to do nothing on their own initiative. Responds soley to onerous demands placed on them by customers (other agencies).

    You know, the 2,000 NSRL (National SIGINT Requirements List) demands that burden them daily: ~18 page contracts, Gen. Alexander’s the crown jewels. Mind you, the info sought might already be sitting around in the warehouse and just require a shipping order. Or an NSL might justify new tasking.

    No one page has been released to date from the *National SIGINT Requirements List.

    The FBI launders domestic surevillance for purposes of parallel construction as described in this summary of a former DOJ agent’s outline:

    “CLEARWATER ingests Title III CALEA, purchased data from telecommunications data brokers, National Security Letters, subpoenas, FBI TACOPS, search warrants, informants, arrests, detentions, airport scans of pocket litter and wallet, even shoulder-surfing of a phone number called by an Occupy Wall Street protester. Airport entry data goes by email to the National Counterrorism Center (NCTC)’s Terrorist Identities Datamart Environment (TIDE) office and from there are forwarded to the PROTON office.”

  7. thatvisionthing says:

    http://www.nakedcapitalism.com/2014/01/jacob-appelbaum-30c3-protect-infect-militarization-internet-transcript.html

    Jacob Appelbaum at 30c3:

    But at the moment the NSA, basically, I feel, has more power than anyone in the entire world – any one agency or any one person. So Emperor Alexander, the head of the NSA, really has a lot of power. If they want to right now, they’ll know that the IMEI of this phone is interesting. It’s very warm, which is another funny thing, and they would be able to break into this phone almost certainly and then turn on the microphone, and all without a court.

    and

    I’ve got this phone – okay. Good. Turn that off. So now –

    [laughter]

    You’re welcome.

    [laughter]

    You have no idea.

    [laughter]

    But I just wanted to make sure that if there was any question about whether or not you are exempt from needing to do something about this, that that is dispelled.

    [applause]

    You see? Cellphone’s on. Great. So. Hey guys.

  8. earlofhuntingdon says:

    A government claiming the right to prohibit one of its citizens from revealing its claims against that citizen, and to prohibit that citizen from consulting a lawyer about the legitimacy and enforceability of such claims do seem more like police state tactics than behavior expected of a democratically-based government.

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