Under the shield and stars of the FBI crest, the letter directed Christian to surrender "all subscriber information, billing information and access logs of any person" who used a specific computer at a library branch some distance away. Christian, who manages digital records for three dozen Connecticut libraries, said in an affidavit that he configures his system for privacy. But the vendors of the software he operates said their databases can reveal the Web sites that visitors browse, the e-mail accounts they open and the books they borrow.
Christian refused to hand over those records, and his employer, Library Connection Inc., filed suit for the right to protest the FBI demand in public. The Washington Post established their identities -- still under seal in the U.S. Court of Appeals for the 2nd Circuit -- by comparing unsealed portions of the file with public records and information gleaned from people who had no knowledge of the FBI demand.
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Steep rise in 'national security letters'
The Connecticut case affords a rare glimpse of an exponentially growing practice of domestic surveillance under the USA Patriot Act and similar legislation. "National security letters," created in the 1970s for espionage and terrorism investigations, originated as narrow exceptions in consumer privacy law, enabling the FBI to review in secret the customer records of suspected foreign agents. The Patriot Act, and Bush administration guidelines for its use, transformed those letters by permitting clandestine scrutiny of U.S. residents and visitors who are not alleged to be terrorists or spies. NSLs are administrative subpoenas (not search warrants) that can be issued by an FBI field office to obtain such records as credit reports, electronic communications transactional records, billing records, and records of financial institutions, including such institutions as casinos, travel agents, car and boat dealerships, jewelers, etc.
Administrative subpoenas and administrative subpoenas duces tecum have been part of the legal landscape of America for over 100 years. There are now over 300 federal agencies that have been granted the power to issue such subpoenas. (...gag!)
The constitutionality of administrative subpoenas was first challenged about 65 years ago and the Supreme Court unjustly held that the Fourth Amendment right (against unreasonable search and seizures) did not preclude enforcement of an 'administrative' subpoena, Nor did they find that the Fifth Amendment privilege against self-incrimination was abused by the process.
The next step in the chain-link of tyranny was the development of the "criminal administrative subpoena" used for criminal investigative purposes, which was introduced with little fanfare in 1970, and should have been immediately challenged.
The national security letters, as a specific type of criminal administrative subpoena, first made their appearance in 1978 as an exception to the Right to Financial Privacy Act. However, since compliance with the NSL was voluntary, Congress quickly responded with the Intelligence Authorization Act amendment which affirmatively gave the FBI access to financial institution records in foreign intelligence cases.
In the years immediately following the development of NSLs, numerous acts of Congress were passed which included the power to issue NSLs. These acts included among others, the Electronic Communications Privacy Act, the Right to Financial Privacy Act and the Fair Credit Reporting Act. Again, SCOTUS either failed to weigh in on the constitutionality of these laws or they ruled in bad behavior, mining and sapping our Liberty just as Thomas Jefferson warned.
In the mid-90's, Congress passed the National Security Act that included NSL provisions for use in connection with the investigation of government employment leaks of classified information.
The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters -- one of which can be used to sweep up the records of many people -- are extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans.
Issued by FBI field supervisors, NSLs do not need the imprimatur of a prosecutor, judge, or grand jury. They receive no review after the fact by the Justice Department or Congress. The executive branch maintains only statistics, which are incomplete and confined to classified reports. The Bush administration defeated legislation and a lawsuit to require a public accounting, and has offered no example in which the use of a national security letter helped disrupt a terrorist plot.
Records archived, shared
The burgeoning use of national security letters coincides with an unannounced decision to deposit all the information they yield into government data banks -- and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for "state, local and tribal" governments and for "appropriate private sector entities," which are not defined.
National security letters offer a case study of the impact of the Patriot Act outside the spotlight of political debate. Drafted in haste after the Sept. 11, 2001, attacks, the law's 132 pages wrought scores of changes in the landscape of intelligence and law enforcement. Many received far more attention than the amendments to a seemingly pedestrian power to review "transactional records." But few if any other provisions touch as many ordinary Americans without their knowledge.
Senior FBI officials acknowledged in interviews that the proliferation of national security letters results primarily from the bureau's new authority to collect intimate facts about people who are not suspected of any wrongdoing. Criticized for failure to detect the Sept. 11 plot, the bureau now casts a much wider net, using national security letters to generate leads as well as to pursue them. Casual or unwitting contact with a suspect -- a single telephone call, for example -- may attract the attention of investigators and subject a person to scrutiny about which he never learns.
Financial privacy eliminated
A national security letter cannot be used at this time to authorize eavesdropping or to read the contents of e-mail... But it does permit investigators to trace revealing paths through the private affairs of a modern digital citizen. The records it yields describe where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work.
As it wrote the Patriot Act over five years ago, Congress bought time and leverage for oversight on an expiration date on 16 provisions. The changes involving national security letters were not among them. In fact, as the Dec. 31 deadline approaches and Congress prepares to renew or make permanent the expiring provisions, House and Senate conferees are poised again to amplify the FBI's power to compel the secret surrender of private records.
The House and Senate have voted to make noncompliance with a national security letter a criminal offense. The House would also impose a prison term for breach of secrecy.
Like many Patriot Act provisions, the ones involving national security letters have been debated in largely abstract terms. The Justice Department has offered Congress no concrete information, even in classified form, save for a partial count of the number of letters delivered. The statistics do not cover all forms of national security letters or all U.S. agencies making use of them.
"The beef with the NSLs is that they don't have even a pretense of judicial or impartial scrutiny," said former representative Robert L. Barr Jr. (Ga.), who finds himself allied with the American Civil Liberties Union after a career as prosecutor, CIA analyst and conservative GOP stalwart. "There's no checks and balances whatever on them. It is simply some bureaucrat's decision that they want information, and they can basically just go and get it."
Moreover, I would challenge American patriots to consider how well they will fare under a left-wing extremist administration that is overtly hostile to their values and way of life. Consider how the Patriot acts and associated legislative tyrannies would be used against deeply conservative and Christian Americans. Imagine the use of these police state powers against gunowners, and against the militias in particular, to destroy Americans' ability to use their 2nd Amendment in defense of their remaining liberties. The use of covert intel-gathering on the American population, computerized searchable databases, and the cataloguing of every citizen's profile will create a national registry of all citizens, and this is the purpose of domestic spying on citizens.
National Security Service
At the end of June this year, only the foreign press had reported on George Bush's creation of a domestic surveillance agency within the FBI called the National Security Service. It assumes responsibility for establishing and operating an intelligence network within the US, and combines DoJ intelligence, counter-terrorism and espionage units. It also establishes powers for the seizure of all assets (real property as well as cash) for anyone they suspect of involvement, aid, or support of terrorism, regardless of who is labeled a 'terrorist' or what constitutes terrorism.
This will place all Americans under a microscope as these domestic surveillance agencies root out anyone that has nonestablishmentarian (dissident) views, as they will reclassify domestic disssidents as being predisposed to aid or support whomever is declared an enemy now or some time in the far future.
Don't be surprised if you wake up one day to discover that your DNA has been secretly scanned by the DNI [Directorate of National Intelligence].
If you are beginning to wake up to the reality that America is no longer a free nation, you will understand that our federal government in all branches is committed to the systematic destruction of our Liberty, and they will blithely disregard the overwhelming and clear will of the people. What you do now is up to you.
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