Critics Say FBI's NSL Powers Should be Curbed
-- Library Journal, 4/13/2007
Two weeks ago, the Federal Bureau of Investigation (FBI) got a chance to respond to the Inspector General's findings that the agency improperly used National Security Letters; on Wednesday, however, critics of the agency, including "John Doe" George Christian of The Library Connection, had their say before the Senate Committee on the Judiciary Subcommittee on the Constitution. Peter Swire, a law professor at Ohio State University, testified that the USA PATRIOT Act "fundamentally changed the nature of NSLs, in ways that create unprecedented legal powers and pose serious risks to privacy and civil liberties," that the gag rule under NSLs is wrong, and that Congress never agreed to "the current scale and scope of NSLs"—39,000 were issued in 2003. "I suggest a new meaning for the acronym NSLs: 'Never Seen the Like,'" he said.
Swire urged reforms "along the line of the bipartisan SAFE Act," which was introduced in Congress last year. Former Congressman Bob Barr, now chairman of Patriots to Restore Checks and Balances, also urged reforms, testifying that it's improper for the FBI to be allowed to issue NSLs "only on the basis that the information be 'relevant' to an investigation," which the Bureau itself has determined to initiate; rather, the inquiry should be more focused. Barr noted that, even though there's nominal judicial review on the gag order imposed on NSL recipients, "the court has no authority to actually weigh factors in determining whether a gag is appropriate, and must defer to the government's certification." He said Congress "should require prior court review as a part of the process for issuing an NSL," given that the FBI routine issues NSLs "regarding people two or three times removed from a terrorist." In his testimony, Christian told the Senators that he and three colleagues at the Windsor, CT-based consortium "are the only recipients of an NSL who can legally talk about the experience." The questions raised by his experience, he said, "vindicate the concerns that the library community and others have had for over five years about the broad powers expanded under the USA PATRIOT Act." He noted that the revised Patriot Act "appears to protect the privacy of library records, but a loophole inserted into the wording allows the FBI to use a national security letter to obtain library records anyway." Also, he cited the impossibility of successfully challenging a gag order. He urged Congress to reconsider the Patriot Act "by requiring judicial reviews of NSL requests for information, especially in libraries and bookstores where a higher standard of review should be considered."
He noted that the NSL served on the Library Connection "asked for all of the 'subscriber information' of 'any person or entity related to' a specific IP address for a 45-minute period on February 15, 2005." Because that IP address was that of a router, not tied to a specific PC, the FBI would have had to look at everyone using a computer in the library that day, he said; moreover, because there was no way to determine the identity of those people, managers of the consortium felt that the FBI was actually seeking "a request for the information we had on all the patrons of that library. That seemed like a rather sweeping request." Since the case was ultimately dropped, Christian said that he and the other three "John Does" have tried to accept every speaking arrangement they get: "We want people to know that the FBI is spying on thousands of completely innocent Americans. We feel an obligation to the tens of thousands of others who received National Security Letters and now will live under a gag order for the rest of their lives."
