The Bush Administration wants the 2nd U.S. Circuit Court of Appeals to restore its power to force Internet service providers to hand over customer or subscriber information as part of its terrorism battle.
The administration argued in a legal filing that federal judge Victor Marrero—who blocked secret searches of such communications records in a September 2004 ruling—ruled wrongly, because the company suing to stop the searches mounted a legal challenge to the records demand.
"(T)he recipient of the national security letter," the administration filing said, "did precisely what the NSLs supposedly prevent recipients from doing."
Congress is now debating renewal of the controversial package of laws known as the Patriot Act, including whether to expand FBI power to get such ISP records without a judge or a jury's approval. The Act expanded upon a clause in a 1986 law, later struck down, that authorized the government to go after such communications records.
The American Civil Liberties Union and an Internet company sued last year after the company got such a national security letter. The ACLU has said the Patriot Act includes no provision to challenge a government demand for documents. "Most people who get NSLs don't know they can bring a challenge in court because the statute doesn't say they can," said ACLU attorney Jameel Jaffer to reporters. "No one has filed a motion to quash in 20 years."
Late last week, the ACLU testified to the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, attacking the Patriot Act's national security letter provision as going too far in letting the government get confidential customer and subscriber information and gagging those customers, subscribers, and their Internet service providers if and when ordered to turn the records over.
"This provision lets the government force businesses to turn over confidential records in ‘national security investigations,’ even if the investigation isn’t linked to criminal activity," said the acting director of the ACLU's Washington legislative office, Gregory T. Nojeim, to the subcommittee May 26. "Those served with these secret order are gagged from telling anyone about it. Lawmakers need to make sure these letters aren’t used to gather information about lawful political or religious activities that are protected under the Constitution."
The Center for Democracy & Technology also opposed restoring the national security letter provision before the same House subcommittee.
"(A) storage revolution is sweeping the field of information and communications technology," said CDT executive director James X. Dempsey. "ISPs, Websites and other online service providers are offering very large quantities of online storage, for email, calendars, photographs and even voicemail. Increasingly, ordinary citizens are storing information not in their homes or even on portable devices but on networks, under the control of service providers who can be served with compulsory process and never have to tell the subscribers that their privacy has been invaded."
Dempsey also said the government has not met a burden of proof that restoring the national security letter power to get records would enhance security materially.
"Under current law, the FBI already has far-reaching and sufficient compulsory powers to obtain any relevant information when it is investigating terrorism, under both its criminal and intelligence authorities . . . The government has made no showing that these powers are insufficient," Dempsey testified.
"To the contrary, it has repeatedly praised the Patriot Act as providing the necessary tools to prevent terrorism and to prosecute a host of terrorism-related cases," he continued. "Given these broad existing powers, and given the widespread public and Congressional concern that some of the existing Patriot Act powers are not subject to sufficient checks and balances, there is no justification for going even further down the path of unchecked authority.
