We’re all familiar with stories about how all the telephone companies rolled over and shoveled our private information to government agencies after 9/11. Even though there was a procedure available for legally obtaining that information (a “National Security Letter” requesting it), the government didn’t bother most of the time and the phone companies didn’t request it. Well, look at how times have changed. In only the second time ever, an NSL has been challenged.
Early last year, the Federal Bureau of Investigation sent a secret letter to a phone company demanding that it turn over customer records for an investigation. The phone company then did something almost unheard of: It fought the letter in court.
The thing about National Security Letters is that they are issued in secret and the recipient is forbidden to tell subscribers that it’s been received. Although that makes it very difficult to fight in court, the recipient in this case is trying. Calling the letter an illegal gag order without a judge’s signature, the NSL is being fought on Constitutional grounds. The last time this happened, the government withdrew its request rather than fight it in court.
National security letters were originally for FBI investigations where there were “specific and articulable facts” indicating the information was related to a foreign agent. The Patriot Act eliminated the requirements for specific facts and a link to a foreign agent.
Since then, use of the letters has increased. In 2000, there were about 8,500 such requests; last year, the FBI made 16,511, according to the Justice Department. That number includes letters asking for things such as records of the numbers called by a phone, or the “to” and “from” lines of emails, but it doesn’t count requests that ask only what subscriber is associated with an account. Including those, more than 49,000 requests were sent in 2006, according to a report from the Justice Department’s inspector general.
Although no one knows who the recipient is in this case, reporters have narrowed it down to the point where they believe it’s aimed at Working Assets Inc. This is troublesome in particular because they have a San Francisco-based telecom subsidiary called CREDO. CREDO is a big supporter of liberal causes, and the FBI has been known to go after liberal activists.
Although the NSL law allows for challenges, the Department of Justice has sued the phone company for daring to fight the letter in court. This is what we’ve come to expect from the DOJ under Obama. After all, we can’t have the slaves gettin’ all upity, you know…