ACLU Applauds Senate Scrutiny of Overbroad NSL Authority

April 23, 2008 12:00 am

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Washington, DC – As an overbroad and often-abused power is examined today by the Senate Judiciary Committee, the American Civil Liberties Union urged members of the committee to thoroughly question its witnesses before marking up legislation aimed at fixing the problem. The “National Security Letter Reform Act” introduced by committee member Senator Russell Feingold (D-WI), would narrow the scope of National Security Letters (NSLs) and curb abuse by federal law enforcement. NSLs are used to obtain access to personal customer records from Internet Service Providers, financial institutions and credit reporting agencies. Recipients of the NSLs are generally forbidden, or “gagged,” from disclosing that they have received the letters.

“As we’ve seen, the broader the NSL statute is, the more likely it is to be abused,” said Caroline Fredrickson, director of the ACLU Washington Legislative Office. “Senator Feingold’s bill will narrow the reach of NSLs, preserve judicial oversight and put the burden on the government to prove that secrecy is needed before imposing draconian gag orders. If Congress doesn’t take action to rein in this power it not only will be sanctioning past abuses, it will also be inviting further misuse. Congress needs to bring this authority back in line with the Constitution as quickly as possible.”

Last month, the Department of Justice’s Office of the Inspector General (OIG) released a report on the FBI’s use of National Security Letters that revealed a systemic, widespread abuse of the NSL power. The OIG report noted two instances where the FBI, on its own initiative, issued NSLs to obtain sensitive information after the Foreign Intelligence Surveillance Court had already rejected its requests. The report also revealed that the FBI issued almost 50,000 NSLs in 2006.

The ACLU released a memo on the OIG report in an effort to highlight aspects of the FBI’s ongoing abuse of its NSL powers. In the memo, the ACLU emphasized the FBI’s continuing use of gags on NSL recipients and noted, among other significant failings, that the FBI has not established procedures to limit the retention of private data as required by statute. The memo also highlighted Inspector General Glenn Fine’s misgivings about whether new internal controls established by the FBI and Department of Justice after the last NSL report will be successful, given the nature and scope of the problems he continues to uncover.

The ACLU also obtained newly un-redacted documents last month in a Freedom of Information Act (FOIA) lawsuit. The documents revealed that the Defense Department may be using the FBI to circumvent legal limits on its own NSL power and may be obtaining sensitive records of people within the U.S. to which the military is not otherwise entitled, simply by asking the FBI to issue the record demands. While the FBI has broad NSL powers and compliance with FBI-issued NSLs is mandatory, the Defense Department’s NSL power is more limited in scope.

“Consecutive reports from the OIG have proven beyond doubt that the FBI cannot police itself with this power,” said Michelle Richardson, ACLU Legislative Counsel. “The current NSL statute is a perfect example of government overreach and is in desperate need of reform. The Senate should pass Senator Feingold’s bill to ensure there is strict, clear oversight when it comes American’s privacy rights.”

To read the ACLU’s statement to the committee, go to:/safefree/nationalsecurityletters/34972leg20080423.html

The ACLU’s section by section of Senator Feingold’s bill is up at: /safefree/nationalsecurityletters/34974leg20080422.html

The ACLU’s memo on the recent OIG report on NSLs can be found at:

More information about the ACLU’s challenges to the NSL power is available at:

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