FBI Improperly Using Patriot Act Surveillance Powers, ACLU Charges

November 29, 2007 12:00 am

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Group Files Freedom of Information Request to Obtain National Security Letter Records

NEW YORK – As a result of newly released Department of Defense (DoD) documents revealing the potential abuse of the government’s surveillance powers, the American Civil Liberties Union today filed a Freedom of Information Act (FOIA) request to force the FBI to turn over documents concerning its use of National Security Letters (NSLs) that demand private data about individuals within the United States without court approval. In today’s request, the ACLU seeks records pertaining to the FBI’s issuing of NSLs at the behest of other agencies that are not authorized to access this sensitive information on their own. In addition, the ACLU is requesting all documents indicating how the FBI has interpreted and used its power to silence NSL recipients since the Patriot Act’s gag provision was amended in 2006.

“The FBI appears to be secretly and illegally rubber stamping the surveillance requests of the Department of Defense when the law clearly forbids it,” said ACLU Executive Director Anthony D. Romero. “The Freedom of Information Act lets us discover the extent to which the FBI has acted as the DoD’s lackey in misusing the Patriot Act powers. The public has a right to know if the FBI has conspired to sidestep the legal limits of the government’s surveillance program.”

In April, the ACLU filed Freedom of Information Act requests with both the Department of Defense and the CIA seeking all documents related to their use of NSLs to gain access to personal records of people in the United States. And in June, the ACLU filed a lawsuit to force those agencies to turn over the requested documents. Last month, as a result of this lawsuit, the ACLU received over 1,000 pages of documents, including 455 NSLs issued by the DoD after 9/11. The documents disclosed that, in order to circumvent statutory limits on its NSL power, the DoD has been asking the FBI to issue NSLs in strictly military investigations. In addition, the documents also revealed that the Department of Defense may have provided misleading information to Congress about the extent to which the department was working secretly with the FBI to obtain records to which DoD was not otherwise entitled.

NSLs are secretly issued by the government to obtain access to personal customer records from Internet service providers, financial institutions, and credit reporting agencies. In almost all cases, recipients of the NSLs are forbidden, or “gagged,” from disclosing that they have received the letters. 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, and, in most cases, compliance with DoD demands is not mandatory. Additionally, while the FBI can issue NSLs in its own investigations, Congress has not given the agency the power to issue NSLs in non-FBI investigations.

“It is clear that the excessive secrecy surrounding the government’s use of National Security Letters has led to widespread abuses. The FBI must now come clean about its role in the military’s expanded domestic intelligence activities, and about how it is using its dangerous gag power,” said Melissa Goodman, staff attorney with the ACLU’s National Security Project. “When it comes to the government’s surveillance powers involving sensitive, private records, following the law is not optional.”

Recent revelations about the Defense Department’s use of NSLs come on the heels of widespread reports of other significant government abuses of the NSL power. A March 2007 report from the Justice Department’s Inspector General (IG) estimated that the FBI issued over 143,000 NSLs between 2003 and 2005, an astronomical increase from previous years. The IG’s report also found numerous examples of improper and illegal uses of NSLs by the FBI.

The ACLU has successfully challenged the NSL power in two separate lawsuits. In one case involving an Internet Service Provider, a federal court in September struck down as unconstitutional the National Security Letter provision of the Patriot Act authorizing the FBI to demand a range of personal records without court approval, and to gag those who receive NSLs from discussing the letters.

Senator Russ Feingold and Representative Jerrold Nadler have introduced legislation to rein in this unchecked NSL authority. The ACLU urges immediate consideration of these bills.

Attorneys filing this FOIA request are Goodman, Danielle Tully, and Jameel Jaffer of the ACLU’s National Security Project.

Today’s FOIA request to the FBI is available at:

All of the Defense Department’s NSL-related documents obtained by the ACLU are available at:

More information about the ACLU’s challenges to the NSL power is available at: www.aclu.org/nsl

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