FBI Monitoring Your Computer And Reading Material re. Patriot Act

#1 (**permalink**) 11-08-2005, 04:57 AM

>
> Under Patriot Act, feds probe lives of residents not alleged
> to be terrorists
>
> By Barton Gellman
>
> The Washington Post
>
> Updated: 1:04 a.m. ET Nov. 6, 2005
>
> The FBI came calling in Windsor, Conn., this summer with a
> document marked for delivery by hand. On Matianuk Avenue,
> across from the tennis courts, two special agents found
> their man. They gave George Christian the letter, which
> warned him to tell no one, ever, what it said.
>
> 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.
>
> 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, which marked its fourth
> anniversary on Oct. 26. "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.
>
> 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, national security letters
> do not need the imprimatur of a prosecutor, grand jury or
> judge. 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.
>
> Following digital bread crumbs
>
> A national security letter cannot be used 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 four years ago, Congress bought
> time and leverage for oversight by placing 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."
>
> 'A routine tool'
>
> Career investigators and Bush administration officials
> emphasized, in congressional testimony and interviews for
> this story, that national security letters are for hunting
> terrorists, not fishing through the private lives of the
> innocent. The distinction is not as clear in practice.
>
> Under the old legal test, the FBI had to have "specific and
> articulable" reasons to believe the records it gathered in
> secret belonged to a terrorist or a spy. Now the bureau
> needs only to certify that the records are "sought for" or
> "relevant to" an investigation "to protect against
> international terrorism or clandestine intelligence
> activities."
>
> That standard enables investigators to look for conspirators
> by sifting the records of nearly anyone who crosses a
> suspect's path.
>
> "If you have a list of, say, 20 telephone numbers that have
> come up . . . on a bad guy's telephone," said Valerie E.
> Caproni, the FBI's general counsel, "you want to find out
> who he's in contact with." Investigators will say, " 'Okay,
> phone company, give us subscriber information and toll
> records on these 20 telephone numbers,' and that can easily
> be 100."
>
> Bush administration officials compare national security
> letters to grand jury subpoenas, which are also based on
> "relevance" to an inquiry. There are differences. Grand
> juries tend to have a narrower focus because they
> investigate past conduct, not the speculative threat of
> unknown future attacks. Recipients of grand jury subpoenas
> are generally free to discuss the subpoenas publicly. And
> there are strict limits on sharing grand jury information
> with government agencies.
>
> Since the Patriot Act, the FBI has dispersed the authority
> to sign national security letters to more than five dozen
> supervisors -- the special agents in charge of field
> offices, the deputies in New York, Los Angeles and
> Washington, and a few senior headquarters officials. FBI
> rules established after the Patriot Act allow the letters to
> be issued long before a case is judged substantial enough
> for a "full field investigation." Agents commonly use the
> letters now in "preliminary investigations" and in the
> "threat assessments" that precede a decision whether to
> launch an investigation.
>
> "Congress has given us this tool to obtain basic telephone
> data, basic banking data, basic credit reports," said
> Caproni, who is among the officials with signature
> authority. "The fact that a national security letter is a
> routine tool used, that doesn't bother me."
>
> 'It's all chicken and egg'
>
> If agents had to wait for grounds to suspect a person of ill
> intent, said Joseph Billy Jr., the FBI's deputy assistant
> director for counterterrorism, they would already know what
> they want to find out with a national security letter. "It's
> all chicken and egg," he said. "We're trying to determine if
> someone warrants scrutiny or doesn't."
>
> Billy said he understands that "merely being in a government
> or FBI database . . . gives everybody, you know, neck hair
> standing up." Innocent Americans, he said, "should take
> comfort at least knowing that it is done under a great deal
> of investigative care, oversight, within the parameters of
> the law."
>
> He added: "That's not going to satisfy a majority of people,
> but . . . I've had people say, you know, 'Hey, I don't care,
> I've done nothing to be concerned about. You can have me in
> your files and that's that.' Some people take that
> approach."
>
> 'Don't go overboard'
>
> In Room 7975 of the J. Edgar Hoover Building, around two
> corners from the director's suite, the chief of the FBI's
> national security law unit sat down at his keyboard about a
> month after the Patriot Act became law. Michael J. Woods had
> helped devise the FBI wish list for surveillance powers. Now
> he offered a caution.
>
> "NSLs are powerful investigative tools, in that they can
> compel the production of substantial amounts of relevant
> information," he wrote in a Nov. 28, 2001, "electronic
> communication" to the FBI's 56 field offices. "However, they
> must be used judiciously." Standing guidelines, he wrote,
> "require that the FBI accomplish its investigations through
> the 'least intrusive' means. . . . The greater availability
> of NSLs does not mean that they should be used in every
> case."
>
> Woods, who left government service in 2002, added a
> practical consideration. Legislators granted the new
> authority and could as easily take it back. When making that
> decision, he wrote, "Congress certainly will examine the
> manner in which the FBI exercised it."
>
> Looking back last month, Woods was struck by how starkly he
> misjudged the climate. The FBI disregarded his warning, and
> no one noticed.
>
> "This is not something that should be automatically done
> because it's easy," he said. "We need to be sure . . . we
> don't go overboard."
>
> 'Why do you want to know?'
>
> One thing Woods did not anticipate was then-Attorney General
> John D. Ashcroft's revision of Justice Department
> guidelines. On May 30, 2002, and Oct. 31, 2003, Ashcroft
> rewrote the playbooks for investigations of terrorist crimes
> and national security threats. He gave overriding priority
> to preventing attacks by any means available.
>
> Ashcroft remained bound by Executive Order 12333, which
> requires the use of the "least intrusive means" in domestic
> intelligence investigations. But his new interpretation came
> close to upending the mandate. Three times in the new
> guidelines, Ashcroft wrote that the FBI "should consider . .
> . less intrusive means" but "should not hesitate to use any
> lawful techniques . . . even if intrusive" when
> investigators believe them to be more timely. "This point,"
> he added, "is to be particularly observed in investigations
> relating to terrorist activities."
>
> As the Justice Department prepared congressional testimony
> this year, FBI headquarters searched for examples that would
> show how expanded surveillance powers made a difference.
> Michael Mason, who runs the Washington field office and has
> the rank of assistant FBI director, found no ready answer.
>
> "I'd love to have a made-for-Hollywood story, but I don't
> have one," Mason said. "I am not even sure such an example
> exists."
>
> What national security letters give his agents, Mason said,
> is speed.
>
> "I have 675 terrorism cases," he said. "Every one of these
> is a potential threat. And anything I can do to get to the
> bottom of any one of them more quickly gets me closer to
> neutralizing a potential threat."
>
> Letters can't be disclosed
>
> Because recipients are permanently barred from disclosing
> the letters, outsiders can make no assessment of their
> relevance to Mason's task.
>
> Woods, the former FBI lawyer, said secrecy is essential when
> an investigation begins because "it would defeat the whole
> purpose" to tip off a suspected terrorist or spy, but
> national security seldom requires that the secret be kept
> forever. Even mobster "John Gotti finds out eventually that
> he was wiretapped" in a criminal probe, said Peter Swire,
> the federal government's chief privacy counselor until 2001.
> "Anyone caught up in an NSL investigation never gets
> notice."
>
> To establish the "relevance" of the information they seek,
> agents face a test so basic it is hard to come up with a
> plausible way to fail. A model request for a supervisor's
> signature, according to internal FBI guidelines, offers this
> one-sentence suggestion: "This subscriber information is
> being requested to determine the individuals or entities
> that the subject has been in contact with during the past
> six months."
>
> Edward L. Williams, the chief division counsel in Mason's
> office, said that supervisors, in practice, "aren't afraid
> to ask . . . 'Why do you want to know?' " He would not say
> how many requests, if any, are rejected.
>
> 'The abuse is in the power itself'
>
> Those who favor the new rules maintain -- as Sen. Pat
> Roberts (R-Kan.), chairman of the Senate Select Committee on
> Intelligence, put it in a prepared statement -- that "there
> has not been one substantiated allegation of abuse of these
> lawful intelligence tools."
>
> What the Bush administration means by abuse is unauthorized
> use of surveillance data -- for example, to blackmail an
> enemy or track an estranged spouse. Critics are focused
> elsewhere. What troubles them is not unofficial abuse but
> the official and routine intrusion into private lives.
>
> To Jeffrey Breinholt, deputy chief of the Justice
> Department's counterterrorism section, the civil liberties
> objections "are eccentric." Data collection on the innocent,
> he said, does no harm unless "someone [decides] to act on
> the information, put you on a no-fly list or something."
> Only a serious error, he said, could lead the government,
> based on nothing more than someone's bank or phone records,
> "to freeze your assets or go after you criminally and you
> suffer consequences that are irreparable." He added: "It's a
> pretty small chance."
>
> "I don't necessarily want somebody knowing what videos I
> rent or the fact that I like cartoons," said Mason, the
> Washington field office chief. But if those records "are
> never used against a person, if they're never used to put
> him in jail, or deprive him of a vote, et cetera, then what
> is the argument?"
>
> Barr, the former congressman, said that "the abuse is in the
> power itself."
>
> "As a conservative," he said, "I really resent an
> administration that calls itself conservative taking the
> position that the burden is on the citizen to show the
> government has abused power, and otherwise shut up and
> comply."
>
> Links in a chain
>
> At the ACLU, staff attorney Jameel Jaffer spoke of "the
> profound chilling effect" of this kind of surveillance: "If
> the government monitors the Web sites that people visit and
> the books that they read, people will stop visiting
> disfavored Web sites and stop reading disfavored books. The
> FBI should not have unchecked authority to keep track of who
> visits [al-Jazeera's Web site] or who visits the Web site of
> the Federalist Society."
>
> Ready access to national security letters allows
> investigators to employ them routinely for "contact
> chaining."
>
> "Starting with your bad guy and his telephone number and
> looking at who he's calling, and [then] who they're
> calling," the number of people surveilled "goes up
> exponentially," acknowledged Caproni, the FBI's general
> counsel.
>
> But Caproni said it would not be rational for the bureau to
> follow the chain too far. "Everybody's connected" if
> investigators keep tracing calls "far enough away from your
> targeted bad guy," she said. "What's the point of that?"
>
> One point is to fill government data banks for another
> investigative technique. That one is called "link analysis,"
> a practice Caproni would neither confirm nor deny.
>
> Two years ago, Ashcroft rescinded a 1995 guideline directing
> that information obtained through a national security letter
> about a U.S. citizen or resident "shall be destroyed by the
> FBI and not further disseminated" if it proves "not relevant
> to the purposes for which it was collected." Ashcroft's new
> order was that "the FBI shall retain" all records it
> collects and "may disseminate" them freely among federal
> agencies.
>
> The same order directed the FBI to develop "data mining"
> technology to probe for hidden links among the people in its
> growing cache of electronic files. According to an FBI
> status report, the bureau's office of intelligence began
> operating in January 2004 a new Investigative Data
> Warehouse, based on the same Oracle technology used by the
> CIA. The CIA is generally forbidden to keep such files on
> Americans.
>
> Data mining creates a 'composite picture'
>
> Data mining intensifies the impact of national security
> letters, because anyone's personal files can be scrutinized
> again and again without a fresh need to establish relevance.
>
> "The composite picture of a person which emerges from
> transactional information is more telling than the direct
> content of your speech," said Woods, the former FBI lawyer.
> "That's certainly not been lost on the intelligence
> community and the FBI."
>
> Ashcroft's new guidelines allowed the FBI for the first time
> to add to government files consumer data from commercial
> providers such as LexisNexis and ChoicePoint Inc. Previous
> attorneys general had decided that such a move would violate
> the Privacy Act. In many field offices, agents said, they
> now have access to ChoicePoint in their squad rooms.
>
> What national security letters add to government data banks
> is information that no commercial service can lawfully
> possess. Strict privacy laws, for example, govern financial
> and communications records. National security letters --
> along with the more powerful but much less frequently used
> secret subpoenas from the Foreign Intelligence Surveillance
> Court -- override them.
>
> 'What happens in Vegas'
>
> The bureau displayed its ambition for data mining in an
> emergency operation at the end of 2003.
>
> The Department of Homeland Security declared an orange alert
> on Dec. 21 of that year, in part because of intelligence
> that hinted at a New Year's Eve attack in Las Vegas. The
> identities of the plotters were unknown.
>
> The FBI sent Gurvais Grigg, chief of the bureau's little-
> known Proactive Data Exploitation Unit, in an audacious
> effort to assemble a real-time census of every visitor in
> the nation's most-visited city. An average of about 300,000
> tourists a day stayed an average of four days each,
> presenting Grigg's team with close to a million potential
> suspects in the ensuing two weeks.
>
> A former stockbroker with a degree in biochemistry, Grigg
> declined to be interviewed. Government and private sector
> sources who followed the operation described epic efforts to
> vacuum up information.
>
> An interagency task force began pulling together the records
> of every hotel guest, everyone who rented a car or truck,
> every lease on a storage space, and every airplane passenger
> who landed in the city. Grigg's unit filtered that
> population for leads. Any link to the known terrorist
> universe -- a shared address or utility account, a check
> deposited, a telephone call -- could give investigators a
> start.
>
> "It was basically a manhunt, and in circumstances where
> there is a manhunt, the most effective way of doing that was
> to scoop up a lot of third party data and compare it to
> other data we were getting," Breinholt said.
>
> Investigators began with emergency requests for help from
> the city's sprawling hospitality industry. "A lot of it was
> done voluntary at first," said Billy, the deputy assistant
> FBI director.
>
> According to others directly involved, investigators turned
> to national security letters and grand jury subpoenas when
> friendly persuasion did not work.
>
> Early in the operation, according to participants, the FBI
> gathered casino executives and asked for guest lists. The
> MGM Mirage company, followed by others, balked.
>
> "Some casinos were saying no to consent [and said], 'You
> have to produce a piece of paper,' " said Jeff Jonas, chief
> scientist at IBM Entity Analytics, who previously built data
> management systems for casino surveillance. "They don't just
> market 'What happens in Vegas stays in Vegas.' They want it
> to be true."
>
> The operation remained secret for about a week. Then casino
> sources told Rod Smith, gaming editor of the Las Vegas
> Review-Journal, that the FBI had served national security
> letters on them. In an interview for this article, one
> former casino executive confirmed the use of a national
> security letter. Details remain elusive. Some law
> enforcement officials, speaking on the condition of
> anonymity because they had not been authorized to divulge
> particulars, said they relied primarily on grand jury
> subpoenas. One said in an interview that national security
> letters may eventually have been withdrawn. Agents
> encouraged voluntary disclosures, he said, by raising the
> prospect that the FBI would use the letters to gather
> something more sensitive: the gambling profiles of casino
> guests. Caproni declined to confirm or deny that account.
>
> What happened in Vegas stayed in federal data banks. Under
> Ashcroft's revised policy, none of the information has been
> purged. For every visitor, Breinholt said, "the record of
> the Las Vegas hotel room would still exist."
>
> Grigg's operation found no suspect, and the orange alert
> ended on Jan. 10, 2004. "The whole thing washed out," one
> participant said.
>
> 'Of interest to President Bush'
>
> At around the time the FBI found George Christian in
> Connecticut, agents from the bureau's Charlotte field office
> paid an urgent call on the chemical engineering department
> at North Carolina State University in Raleigh. They were
> looking for information about a former student named Magdy
> Nashar, then suspected in the July 7 London subway bombing
> but since cleared of suspicion.
>
> University officials said in interviews late last month that
> the FBI tried to use a national security letter to demand
> much more information than the law allows.
>
> 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.
>
> "We're very eager to comply with the authorities in this
> regard, but we needed to have what we felt was a legally
> valid procedure," said Larry A. Neilsen, the university
> provost.
>
> 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.
>
> The FBI's Charlotte office referred questions to
> headquarters. A high-ranking FBI official, who spoke on the
> condition of anonymity, acknowledged that the field office
> erred in attempting to use a national security letter.
> Investigators, he said, "were in a big hurry for obvious
> reasons" and did not approach the university "in the exact
> right way."
>
> 'Unreasonable' or 'oppressive'
>
> The electronic docket in the Connecticut case, as the New
> York Times first reported, briefly titled the lawsuit
> Library Connection Inc. v. Gonzales . Because identifying
> details were not supposed to be left in the public file, the
> court soon replaced the plaintiff's name with "John Doe."
>
> George Christian, Library Connection's executive director,
> is identified in his affidavit as "John Doe 2." In that
> sworn statement, he said people often come to libraries for
> information that is "highly sensitive, embarrassing or
> personal." He wanted to fight the FBI but feared calling a
> lawyer because the letter said he could not disclose its
> existence to "any person." He consulted Peter Chase, vice
> president of Library Connection and chairman of a state
> intellectual freedom committee. Chase -- "John Doe 1" in his
> affidavit -- advised Christian to call the ACLU. Reached by
> telephone at their homes, both men declined to be
> interviewed.
>
> U.S. District Judge Janet C. Hall ruled in September that
> the FBI gag order violates Christian's, and Library
> Connection's, First Amendment rights. A three-judge panel
> heard oral argument on Wednesday in the government's appeal.
>
> The central facts remain opaque, even to the judges, because
> the FBI is not obliged to describe what it is looking for,
> or why. During oral argument in open court on Aug. 31, Hall
> said one government explanation was so vague that "if I were
> to say it out loud, I would get quite a laugh here." After
> the government elaborated in a classified brief delivered
> for her eyes only, she wrote in her decision that it offered
> "nothing specific."
>
> Few resist national security letters
>
> The Justice Department tried to conceal the existence of the
> first and only other known lawsuit against a national
> security letter, also brought by the ACLU's Jaffer and Ann
> Beeson. Government lawyers opposed its entry into the public
> docket of a New York federal judge. They have since tried to
> censor nearly all the contents of the exhibits and briefs.
> They asked the judge, for example, to black out every line
> of the affidavit that describes the delivery of the national
> security letter to a New York Internet company, including,
> "I am a Special Agent of the Federal Bureau of Investigation
> ('FBI')."
>
> U.S. District Judge Victor Marrero, in a ruling that is
> under appeal, held that the law authorizing national
> security letters violates the First and Fourth Amendments.
>
> Resistance to national security letters is rare. Most of
> them are served on large companies in highly regulated
> industries, with business interests that favor cooperation.
> The in-house lawyers who handle such cases, said Jim
> Dempsey, executive director of the Center for Democracy and
> Technology, "are often former prosecutors -- instinctively
> pro-government but also instinctively by-the-books."
> National security letters give them a shield against
> liability to their customers.
>
> Kenneth M. Breen, a partner at the New York law firm
> Fulbright & Jaworski, held a seminar for corporate lawyers
> one recent evening to explain the "significant risks for the
> non-compliant" in government counterterrorism
> investigations. A former federal prosecutor, Breen said
> failure to provide the required information could create
> "the perception that your company didn't live up to its duty
> to fight terrorism" and could invite class-action lawsuits
> from the families of terrorism victims. In extreme cases, he
> said, a business could face criminal prosecution, "a 'death
> sentence' for certain kinds of companies."
>
> The volume of government information demands, even so, has
> provoked a backlash. Several major business groups,
> including the National Association of Manufacturers and the
> U.S. Chamber of Commerce, complained in an Oct. 4 letter to
> senators that customer records can "too easily be obtained
> and disseminated" around the government. National security
> letters, they wrote, have begun to impose an "expensive and
> time-consuming burden" on business.
>
> The House and Senate bills renewing the Patriot Act do not
> tighten privacy protections, but they offer a concession to
> business interests. In both bills, a judge may modify a
> national security letter if it imposes an "unreasonable" or
> "oppressive" burden on the company that is asked for
> information.
>
> Oversight lags behind
>
> As national security letters have grown in number and
> importance, oversight has not kept up. In each house of
> Congress, jurisdiction is divided between the judiciary and
> intelligence committees. None of the four Republican
> chairmen agreed to be interviewed.
>
> Roberts, the Senate intelligence chairman, said in a
> statement issued through his staff that "the committee is
> well aware of the intelligence value of the information that
> is lawfully collected under these national security letter
> authorities," which he described as "non-intrusive" and
> "crucial to tracking terrorist networks and detecting
> clandestine intelligence activities." Senators receive
> "valuable reporting by the FBI," he said, in "semi-annual
> reports [that] provide the committee with the information
> necessary to conduct effective oversight."
>
> Roberts was referring to the Justice Department's classified
> statistics, which in fact have been delivered three times in
> four years. They include the following information: how many
> times the FBI issued national security letters; whether the
> letters sought financial, credit or communications records;
> and how many of the targets were "U.S. persons." The
> statistics omit one whole category of FBI national security
> letters and also do not count letters issued by the Defense
> Department and other agencies.
>
> Committee members have occasionally asked to see a sampling
> of national security letters, a description of their fruits
> or examples of their contribution to a particular case. The
> Justice Department has not obliged.
>
> In 2004, the conference report attached to the intelligence
> authorization bill asked the attorney general to "include in
> his next semiannual report" a description of "the scope of
> such letters" and the "process and standards for approving"
> them. More than a year has passed without a Justice
> Department reply.
>
> "The committee chairman has the power to issue subpoenas"
> for information from the executive branch, said Rep. Zoe
> Lofgren (D-Calif.), a House Judiciary Committee member. "The
> minority has no power to compel, and . . . Republicans are
> not going to push for oversight of the Republicans. That's
> the story of this Congress."
>
> In the executive branch, no FBI or Justice Department
> official audits the use of national security letters to
> assess whether they are appropriately targeted, lawfully
> applied or contribute important facts to an investigation.
>
> No Patriot Act complaints sustained - yet
>
> Justice Department officials noted frequently this year that
> Inspector General Glenn A. Fine reports twice a year on
> abuses of the Patriot Act and has yet to substantiate any
> complaint. (One investigation is pending.) Fine advertises
> his role, but there is a puzzle built into the mandate.
> Under what scenario could a person protest a search of his
> personal records if he is never notified?
>
> "We do rely upon complaints coming in," Fine said in House
> testimony in May. He added: "To the extent that people do
> not know of anything happening to them, there is an issue
> about whether they can complain. So, I think that's a
> legitimate question."
>
> Asked more recently whether Fine's office has conducted an
> independent examination of national security letters, Deputy
> Inspector General Paul K. Martin said in an interview: "We
> have not initiated a broad-based review that examines the
> use of specific provisions of the Patriot Act."
>
> At the FBI, senior officials said the most important check
> on their power is that Congress is watching.
>
> "People have to depend on their elected representatives to
> do the job of oversight they were elected to do," Caproni
> said. "And we think they do a fine job of it."
>
> Researcher Julie Tate and research editor Lucy Shackelford
> contributed to this report.
>
> © 2005 The Washington Post Company
>
> © 2005 MSNBC.com
>
> URL: http://www.msnbc.msn.com/id/9939709/

#2 (**permalink**) 11-08-2005, 05:06 AM

Wow, did anyone read that whole thing?

tightwad wrote:
>
>
>
>>
>> Under Patriot Act, feds probe lives of residents not alleged
>> to be terrorists
>>
>> By Barton Gellman
>>
>> The Washington Post
>>
>> Updated: 1:04 a.m. ET Nov. 6, 2005
>>
>> The FBI came calling in Windsor, Conn., this summer with a
>> document marked for delivery by hand. On Matianuk Avenue,
>> across from the tennis courts, two special agents found
>> their man. They gave George Christian the letter, which
>> warned him to tell no one, ever, what it said.
>>
>> 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.
>>
>> 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, which marked its fourth
>> anniversary on Oct. 26. "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.
>>
>> 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, national security letters
>> do not need the imprimatur of a prosecutor, grand jury or
>> judge. 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.
>>
>> Following digital bread crumbs
>>
>> A national security letter cannot be used 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 four years ago, Congress bought
>> time and leverage for oversight by placing 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."
>>
>> 'A routine tool'
>>
>> Career investigators and Bush administration officials
>> emphasized, in congressional testimony and interviews for
>> this story, that national security letters are for hunting
>> terrorists, not fishing through the private lives of the
>> innocent. The distinction is not as clear in practice.
>>
>> Under the old legal test, the FBI had to have "specific and
>> articulable" reasons to believe the records it gathered in
>> secret belonged to a terrorist or a spy. Now the bureau
>> needs only to certify that the records are "sought for" or
>> "relevant to" an investigation "to protect against
>> international terrorism or clandestine intelligence
>> activities."
>>
>> That standard enables investigators to look for conspirators
>> by sifting the records of nearly anyone who crosses a
>> suspect's path.
>>
>> "If you have a list of, say, 20 telephone numbers that have
>> come up . . . on a bad guy's telephone," said Valerie E.
>> Caproni, the FBI's general counsel, "you want to find out
>> who he's in contact with." Investigators will say, " 'Okay,
>> phone company, give us subscriber information and toll
>> records on these 20 telephone numbers,' and that can easily
>> be 100."
>>
>> Bush administration officials compare national security
>> letters to grand jury subpoenas, which are also based on
>> "relevance" to an inquiry. There are differences. Grand
>> juries tend to have a narrower focus because they
>> investigate past conduct, not the speculative threat of
>> unknown future attacks. Recipients of grand jury subpoenas
>> are generally free to discuss the subpoenas publicly. And
>> there are strict limits on sharing grand jury information
>> with government agencies.
>>
>> Since the Patriot Act, the FBI has dispersed the authority
>> to sign national security letters to more than five dozen
>> supervisors -- the special agents in charge of field
>> offices, the deputies in New York, Los Angeles and
>> Washington, and a few senior headquarters officials. FBI
>> rules established after the Patriot Act allow the letters to
>> be issued long before a case is judged substantial enough
>> for a "full field investigation." Agents commonly use the
>> letters now in "preliminary investigations" and in the
>> "threat assessments" that precede a decision whether to
>> launch an investigation.
>>
>> "Congress has given us this tool to obtain basic telephone
>> data, basic banking data, basic credit reports," said
>> Caproni, who is among the officials with signature
>> authority. "The fact that a national security letter is a
>> routine tool used, that doesn't bother me."
>>
>> 'It's all chicken and egg'
>>
>> If agents had to wait for grounds to suspect a person of ill
>> intent, said Joseph Billy Jr., the FBI's deputy assistant
>> director for counterterrorism, they would already know what
>> they want to find out with a national security letter. "It's
>> all chicken and egg," he said. "We're trying to determine if
>> someone warrants scrutiny or doesn't."
>>
>> Billy said he understands that "merely being in a government
>> or FBI database . . . gives everybody, you know, neck hair
>> standing up." Innocent Americans, he said, "should take
>> comfort at least knowing that it is done under a great deal
>> of investigative care, oversight, within the parameters of
>> the law."
>>
>> He added: "That's not going to satisfy a majority of people,
>> but . . . I've had people say, you know, 'Hey, I don't care,
>> I've done nothing to be concerned about. You can have me in
>> your files and that's that.' Some people take that
>> approach."
>>
>> 'Don't go overboard'
>>
>> In Room 7975 of the J. Edgar Hoover Building, around two
>> corners from the director's suite, the chief of the FBI's
>> national security law unit sat down at his keyboard about a
>> month after the Patriot Act became law. Michael J. Woods had
>> helped devise the FBI wish list for surveillance powers. Now
>> he offered a caution.
>>
>> "NSLs are powerful investigative tools, in that they can
>> compel the production of substantial amounts of relevant
>> information," he wrote in a Nov. 28, 2001, "electronic
>> communication" to the FBI's 56 field offices. "However, they
>> must be used judiciously." Standing guidelines, he wrote,
>> "require that the FBI accomplish its investigations through
>> the 'least intrusive' means. . . . The greater availability
>> of NSLs does not mean that they should be used in every
>> case."
>>
>> Woods, who left government service in 2002, added a
>> practical consideration. Legislators granted the new
>> authority and could as easily take it back. When making that
>> decision, he wrote, "Congress certainly will examine the
>> manner in which the FBI exercised it."
>>
>> Looking back last month, Woods was struck by how starkly he
>> misjudged the climate. The FBI disregarded his warning, and
>> no one noticed.
>>
>> "This is not something that should be automatically done
>> because it's easy," he said. "We need to be sure . . . we
>> don't go overboard."
>>
>> 'Why do you want to know?'
>>
>> One thing Woods did not anticipate was then-Attorney General
>> John D. Ashcroft's revision of Justice Department
>> guidelines. On May 30, 2002, and Oct. 31, 2003, Ashcroft
>> rewrote the playbooks for investigations of terrorist crimes
>> and national security threats. He gave overriding priority
>> to preventing attacks by any means available.
>>
>> Ashcroft remained bound by Executive Order 12333, which
>> requires the use of the "least intrusive means" in domestic
>> intelligence investigations. But his new interpretation came
>> close to upending the mandate. Three times in the new
>> guidelines, Ashcroft wrote that the FBI "should consider . .
>> . less intrusive means" but "should not hesitate to use any
>> lawful techniques . . . even if intrusive" when
>> investigators believe them to be more timely. "This point,"
>> he added, "is to be particularly observed in investigations
>> relating to terrorist activities."
>>
>> As the Justice Department prepared congressional testimony
>> this year, FBI headquarters searched for examples that would
>> show how expanded surveillance powers made a difference.
>> Michael Mason, who runs the Washington field office and has
>> the rank of assistant FBI director, found no ready answer.
>>
>> "I'd love to have a made-for-Hollywood story, but I don't
>> have one," Mason said. "I am not even sure such an example
>> exists."
>>
>> What national security letters give his agents, Mason said,
>> is speed.
>>
>> "I have 675 terrorism cases," he said. "Every one of these
>> is a potential threat. And anything I can do to get to the
>> bottom of any one of them more quickly gets me closer to
>> neutralizing a potential threat."
>>
>> Letters can't be disclosed
>>
>> Because recipients are permanently barred from disclosing
>> the letters, outsiders can make no assessment of their
>> relevance to Mason's task.
>>
>> Woods, the former FBI lawyer, said secrecy is essential when
>> an investigation begins because "it would defeat the whole
>> purpose" to tip off a suspected terrorist or spy, but
>> national security seldom requires that the secret be kept
>> forever. Even mobster "John Gotti finds out eventually that
>> he was wiretapped" in a criminal probe, said Peter Swire,
>> the federal government's chief privacy counselor until 2001.
>> "Anyone caught up in an NSL investigation never gets
>> notice."
>>
>> To establish the "relevance" of the information they seek,
>> agents face a test so basic it is hard to come up with a
>> plausible way to fail. A model request for a supervisor's
>> signature, according to internal FBI guidelines, offers this
>> one-sentence suggestion: "This subscriber information is
>> being requested to determine the individuals or entities
>> that the subject has been in contact with during the past
>> six months."
>>
>> Edward L. Williams, the chief division counsel in Mason's
>> office, said that supervisors, in practice, "aren't afraid
>> to ask . . . 'Why do you want to know?' " He would not say
>> how many requests, if any, are rejected.
>>
>> 'The abuse is in the power itself'
>>
>> Those who favor the new rules maintain -- as Sen. Pat
>> Roberts (R-Kan.), chairman of the Senate Select Committee on
>> Intelligence, put it in a prepared statement -- that "there
>> has not been one substantiated allegation of abuse of these
>> lawful intelligence tools."
>>
>> What the Bush administration means by abuse is unauthorized
>> use of surveillance data -- for example, to blackmail an
>> enemy or track an estranged spouse. Critics are focused
>> elsewhere. What troubles them is not unofficial abuse but
>> the official and routine intrusion into private lives.
>>
>> To Jeffrey Breinholt, deputy chief of the Justice
>> Department's counterterrorism section, the civil liberties
>> objections "are eccentric." Data collection on the innocent,
>> he said, does no harm unless "someone [decides] to act on
>> the information, put you on a no-fly list or something."
>> Only a serious error, he said, could lead the government,
>> based on nothing more than someone's bank or phone records,
>> "to freeze your assets or go after you criminally and you
>> suffer consequences that are irreparable." He added: "It's a
>> pretty small chance."
>>
>> "I don't necessarily want somebody knowing what videos I
>> rent or the fact that I like cartoons," said Mason, the
>> Washington field office chief. But if those records "are
>> never used against a person, if they're never used to put
>> him in jail, or deprive him of a vote, et cetera, then what
>> is the argument?"
>>
>> Barr, the former congressman, said that "the abuse is in the
>> power itself."
>>
>> "As a conservative," he said, "I really resent an
>> administration that calls itself conservative taking the
>> position that the burden is on the citizen to show the
>> government has abused power, and otherwise shut up and
>> comply."
>>
>> Links in a chain
>>
>> At the ACLU, staff attorney Jameel Jaffer spoke of "the
>> profound chilling effect" of this kind of surveillance: "If
>> the government monitors the Web sites that people visit and
>> the books that they read, people will stop visiting
>> disfavored Web sites and stop reading disfavored books. The
>> FBI should not have unchecked authority to keep track of who
>> visits [al-Jazeera's Web site] or who visits the Web site of
>> the Federalist Society."
>>
>> Ready access to national security letters allows
>> investigators to employ them routinely for "contact
>> chaining."
>>
>> "Starting with your bad guy and his telephone number and
>> looking at who he's calling, and [then] who they're
>> calling," the number of people surveilled "goes up
>> exponentially," acknowledged Caproni, the FBI's general
>> counsel.
>>
>> But Caproni said it would not be rational for the bureau to
>> follow the chain too far. "Everybody's connected" if
>> investigators keep tracing calls "far enough away from your
>> targeted bad guy," she said. "What's the point of that?"
>>
>> One point is to fill government data banks for another
>> investigative technique. That one is called "link analysis,"
>> a practice Caproni would neither confirm nor deny.
>>
>> Two years ago, Ashcroft rescinded a 1995 guideline directing
>> that information obtained through a national security letter
>> about a U.S. citizen or resident "shall be destroyed by the
>> FBI and not further disseminated" if it proves "not relevant
>> to the purposes for which it was collected." Ashcroft's new
>> order was that "the FBI shall retain" all records it
>> collects and "may disseminate" them freely among federal
>> agencies.
>>
>> The same order directed the FBI to develop "data mining"
>> technology to probe for hidden links among the people in its
>> growing cache of electronic files. According to an FBI
>> status report, the bureau's office of intelligence began
>> operating in January 2004 a new Investigative Data
>> Warehouse, based on the same Oracle technology used by the
>> CIA. The CIA is generally forbidden to keep such files on
>> Americans.
>>
>> Data mining creates a 'composite picture'
>>
>> Data mining intensifies the impact of national security
>> letters, because anyone's personal files can be scrutinized
>> again and again without a fresh need to establish relevance.
>>
>> "The composite picture of a person which emerges from
>> transactional information is more telling than the direct
>> content of your speech," said Woods, the former FBI lawyer.
>> "That's certainly not been lost on the intelligence
>> community and the FBI."
>>
>> Ashcroft's new guidelines allowed the FBI for the first time
>> to add to government files consumer data from commercial
>> providers such as LexisNexis and ChoicePoint Inc. Previous
>> attorneys general had decided that such a move would violate
>> the Privacy Act. In many field offices, agents said, they
>> now have access to ChoicePoint in their squad rooms.
>>
>> What national security letters add to government data banks
>> is information that no commercial service can lawfully
>> possess. Strict privacy laws, for example, govern financial
>> and communications records. National security letters --
>> along with the more powerful but much less frequently used
>> secret subpoenas from the Foreign Intelligence Surveillance
>> Court -- override them.
>>
>> 'What happens in Vegas'
>>
>> The bureau displayed its ambition for data mining in an
>> emergency operation at the end of 2003.
>>
>> The Department of Homeland Security declared an orange alert
>> on Dec. 21 of that year, in part because of intelligence
>> that hinted at a New Year's Eve attack in Las Vegas. The
>> identities of the plotters were unknown.
>>
>> The FBI sent Gurvais Grigg, chief of the bureau's little-
>> known Proactive Data Exploitation Unit, in an audacious
>> effort to assemble a real-time census of every visitor in
>> the nation's most-visited city. An average of about 300,000
>> tourists a day stayed an average of four days each,
>> presenting Grigg's team with close to a million potential
>> suspects in the ensuing two weeks.
>>
>> A former stockbroker with a degree in biochemistry, Grigg
>> declined to be interviewed. Government and private sector
>> sources who followed the operation described epic efforts to
>> vacuum up information.
>>
>> An interagency task force began pulling together the records
>> of every hotel guest, everyone who rented a car or truck,
>> every lease on a storage space, and every airplane passenger
>> who landed in the city. Grigg's unit filtered that
>> population for leads. Any link to the known terrorist
>> universe -- a shared address or utility account, a check
>> deposited, a telephone call -- could give investigators a
>> start.
>>
>> "It was basically a manhunt, and in circumstances where
>> there is a manhunt, the most effective way of doing that was
>> to scoop up a lot of third party data and compare it to
>> other data we were getting," Breinholt said.
>>
>> Investigators began with emergency requests for help from
>> the city's sprawling hospitality industry. "A lot of it was
>> done voluntary at first," said Billy, the deputy assistant
>> FBI director.
>>
>> According to others directly involved, investigators turned
>> to national security letters and grand jury subpoenas when
>> friendly persuasion did not work.
>>
>> Early in the operation, according to participants, the FBI
>> gathered casino executives and asked for guest lists. The
>> MGM Mirage company, followed by others, balked.
>>
>> "Some casinos were saying no to consent [and said], 'You
>> have to produce a piece of paper,' " said Jeff Jonas, chief
>> scientist at IBM Entity Analytics, who previously built data
>> management systems for casino surveillance. "They don't just
>> market 'What happens in Vegas stays in Vegas.' They want it
>> to be true."
>>
>> The operation remained secret for about a week. Then casino
>> sources told Rod Smith, gaming editor of the Las Vegas
>> Review-Journal, that the FBI had served national security
>> letters on them. In an interview for this article, one
>> former casino executive confirmed the use of a national
>> security letter. Details remain elusive. Some law
>> enforcement officials, speaking on the condition of
>> anonymity because they had not been authorized to divulge
>> particulars, said they relied primarily on grand jury
>> subpoenas. One said in an interview that national security
>> letters may eventually have been withdrawn. Agents
>> encouraged voluntary disclosures, he said, by raising the
>> prospect that the FBI would use the letters to gather
>> something more sensitive: the gambling profiles of casino
>> guests. Caproni declined to confirm or deny that account.
>>
>> What happened in Vegas stayed in federal data banks. Under
>> Ashcroft's revised policy, none of the information has been
>> purged. For every visitor, Breinholt said, "the record of
>> the Las Vegas hotel room would still exist."
>>
>> Grigg's operation found no suspect, and the orange alert
>> ended on Jan. 10, 2004. "The whole thing washed out," one
>> participant said.
>>
>> 'Of interest to President Bush'
>>
>> At around the time the FBI found George Christian in
>> Connecticut, agents from the bureau's Charlotte field office
>> paid an urgent call on the chemical engineering department
>> at North Carolina State University in Raleigh. They were
>> looking for information about a former student named Magdy
>> Nashar, then suspected in the July 7 London subway bombing
>> but since cleared of suspicion.
>>
>> University officials said in interviews late last month that
>> the FBI tried to use a national security letter to demand
>> much more information than the law allows.
>>
>> 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.
>>
>> "We're very eager to comply with the authorities in this
>> regard, but we needed to have what we felt was a legally
>> valid procedure," said Larry A. Neilsen, the university
>> provost.
>>
>> 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.
>>
>> The FBI's Charlotte office referred questions to
>> headquarters. A high-ranking FBI official, who spoke on the
>> condition of anonymity, acknowledged that the field office
>> erred in attempting to use a national security letter.
>> Investigators, he said, "were in a big hurry for obvious
>> reasons" and did not approach the university "in the exact
>> right way."
>>
>> 'Unreasonable' or 'oppressive'
>>
>> The electronic docket in the Connecticut case, as the New
>> York Times first reported, briefly titled the lawsuit
>> Library Connection Inc. v. Gonzales . Because identifying
>> details were not supposed to be left in the public file, the
>> court soon replaced the plaintiff's name with "John Doe."
>>
>> George Christian, Library Connection's executive director,
>> is identified in his affidavit as "John Doe 2." In that
>> sworn statement, he said people often come to libraries for
>> information that is "highly sensitive, embarrassing or
>> personal." He wanted to fight the FBI but feared calling a
>> lawyer because the letter said he could not disclose its
>> existence to "any person." He consulted Peter Chase, vice
>> president of Library Connection and chairman of a state
>> intellectual freedom committee. Chase -- "John Doe 1" in his
>> affidavit -- advised Christian to call the ACLU. Reached by
>> telephone at their homes, both men declined to be
>> interviewed.
>>
>> U.S. District Judge Janet C. Hall ruled in September that
>> the FBI gag order violates Christian's, and Library
>> Connection's, First Amendment rights. A three-judge panel
>> heard oral argument on Wednesday in the government's appeal.
>>
>> The central facts remain opaque, even to the judges, because
>> the FBI is not obliged to describe what it is looking for,
>> or why. During oral argument in open court on Aug. 31, Hall
>> said one government explanation was so vague that "if I were
>> to say it out loud, I would get quite a laugh here." After
>> the government elaborated in a classified brief delivered
>> for her eyes only, she wrote in her decision that it offered
>> "nothing specific."
>>
>> Few resist national security letters
>>
>> The Justice Department tried to conceal the existence of the
>> first and only other known lawsuit against a national
>> security letter, also brought by the ACLU's Jaffer and Ann
>> Beeson. Government lawyers opposed its entry into the public
>> docket of a New York federal judge. They have since tried to
>> censor nearly all the contents of the exhibits and briefs.
>> They asked the judge, for example, to black out every line
>> of the affidavit that describes the delivery of the national
>> security letter to a New York Internet company, including,
>> "I am a Special Agent of the Federal Bureau of Investigation
>> ('FBI')."
>>
>> U.S. District Judge Victor Marrero, in a ruling that is
>> under appeal, held that the law authorizing national
>> security letters violates the First and Fourth Amendments.
>>
>> Resistance to national security letters is rare. Most of
>> them are served on large companies in highly regulated
>> industries, with business interests that favor cooperation.
>> The in-house lawyers who handle such cases, said Jim
>> Dempsey, executive director of the Center for Democracy and
>> Technology, "are often former prosecutors -- instinctively
>> pro-government but also instinctively by-the-books."
>> National security letters give them a shield against
>> liability to their customers.
>>
>> Kenneth M. Breen, a partner at the New York law firm
>> Fulbright & Jaworski, held a seminar for corporate lawyers
>> one recent evening to explain the "significant risks for the
>> non-compliant" in government counterterrorism
>> investigations. A former federal prosecutor, Breen said
>> failure to provide the required information could create
>> "the perception that your company didn't live up to its duty
>> to fight terrorism" and could invite class-action lawsuits
>> from the families of terrorism victims. In extreme cases, he
>> said, a business could face criminal prosecution, "a 'death
>> sentence' for certain kinds of companies."
>>
>> The volume of government information demands, even so, has
>> provoked a backlash. Several major business groups,
>> including the National Association of Manufacturers and the
>> U.S. Chamber of Commerce, complained in an Oct. 4 letter to
>> senators that customer records can "too easily be obtained
>> and disseminated" around the government. National security
>> letters, they wrote, have begun to impose an "expensive and
>> time-consuming burden" on business.
>>
>> The House and Senate bills renewing the Patriot Act do not
>> tighten privacy protections, but they offer a concession to
>> business interests. In both bills, a judge may modify a
>> national security letter if it imposes an "unreasonable" or
>> "oppressive" burden on the company that is asked for
>> information.
>>
>> Oversight lags behind
>>
>> As national security letters have grown in number and
>> importance, oversight has not kept up. In each house of
>> Congress, jurisdiction is divided between the judiciary and
>> intelligence committees. None of the four Republican
>> chairmen agreed to be interviewed.
>>
>> Roberts, the Senate intelligence chairman, said in a
>> statement issued through his staff that "the committee is
>> well aware of the intelligence value of the information that
>> is lawfully collected under these national security letter
>> authorities," which he described as "non-intrusive" and
>> "crucial to tracking terrorist networks and detecting
>> clandestine intelligence activities." Senators receive
>> "valuable reporting by the FBI," he said, in "semi-annual
>> reports [that] provide the committee with the information
>> necessary to conduct effective oversight."
>>
>> Roberts was referring to the Justice Department's classified
>> statistics, which in fact have been delivered three times in
>> four years. They include the following information: how many
>> times the FBI issued national security letters; whether the
>> letters sought financial, credit or communications records;
>> and how many of the targets were "U.S. persons." The
>> statistics omit one whole category of FBI national security
>> letters and also do not count letters issued by the Defense
>> Department and other agencies.
>>
>> Committee members have occasionally asked to see a sampling
>> of national security letters, a description of their fruits
>> or examples of their contribution to a particular case. The
>> Justice Department has not obliged.
>>
>> In 2004, the conference report attached to the intelligence
>> authorization bill asked the attorney general to "include in
>> his next semiannual report" a description of "the scope of
>> such letters" and the "process and standards for approving"
>> them. More than a year has passed without a Justice
>> Department reply.
>>
>> "The committee chairman has the power to issue subpoenas"
>> for information from the executive branch, said Rep. Zoe
>> Lofgren (D-Calif.), a House Judiciary Committee member. "The
>> minority has no power to compel, and . . . Republicans are
>> not going to push for oversight of the Republicans. That's
>> the story of this Congress."
>>
>> In the executive branch, no FBI or Justice Department
>> official audits the use of national security letters to
>> assess whether they are appropriately targeted, lawfully
>> applied or contribute important facts to an investigation.
>>
>> No Patriot Act complaints sustained - yet
>>
>> Justice Department officials noted frequently this year that
>> Inspector General Glenn A. Fine reports twice a year on
>> abuses of the Patriot Act and has yet to substantiate any
>> complaint. (One investigation is pending.) Fine advertises
>> his role, but there is a puzzle built into the mandate.
>> Under what scenario could a person protest a search of his
>> personal records if he is never notified?
>>
>> "We do rely upon complaints coming in," Fine said in House
>> testimony in May. He added: "To the extent that people do
>> not know of anything happening to them, there is an issue
>> about whether they can complain. So, I think that's a
>> legitimate question."
>>
>> Asked more recently whether Fine's office has conducted an
>> independent examination of national security letters, Deputy
>> Inspector General Paul K. Martin said in an interview: "We
>> have not initiated a broad-based review that examines the
>> use of specific provisions of the Patriot Act."
>>
>> At the FBI, senior officials said the most important check
>> on their power is that Congress is watching.
>>
>> "People have to depend on their elected representatives to
>> do the job of oversight they were elected to do," Caproni
>> said. "And we think they do a fine job of it."
>>
>> Researcher Julie Tate and research editor Lucy Shackelford
>> contributed to this report.
>>
>> © 2005 The Washington Post Company
>>
>> © 2005 MSNBC.com
>>
>> URL: http://www.msnbc.msn.com/id/9939709/

#3 (**permalink**) 11-08-2005, 09:21 AM

* Fakename <fakename12345@shaw.ca>:
> Wow, did anyone read that whole thing?

No, but did you have to repost the whole silly thing when you hit reply?