National Security Letters and the USA Freedom Act

Several sections of the Patriot Act were allowed to expire at midnight on May 31, 2015, including the controversial Section 215, which allowed for government collection of bulk phone records, among other things. All indications are that the collection of bulk records will resume under the USA FREEDOM Act, but with slightly different verbiage which should allow for greater oversight. It’s not a perfect solution, but making small steps in the right direction is progress, especially in a politically-charged legislative environment (seems like things get done when Presidential Hopefuls take an interest in showcasing their “leadership” skills on certain issues).

Other reforms which are unrelated to Section 215 have also been introduced by the USA FREEDOM Act. One overlooked reform effort relates to the use of National Security Letters (NSLs) during government investigations.

In the past, when a government agency such as the FBI has requested documents or information from a person or entity, the request is accompanied by a gag order which prevent the person who received the letter from disclosing its existence. Over 300,000 NSLs have been issued since 2004, making them a powerful investigative tool which can be used without any judicial oversight. Nick Merrill was the recipient of one such NSL, and he was technically not allowed to tell anyone, even his lawyer, about it (he did anyway and successfully sued the US government). A group of librarians also sued the US government after receiving requests for information on library patrons with such a gag order attached.

The new provision still allows for these gag orders, but opens the door slightly wider for a challenge, as recipients are now allowed to share their existence with their lawyer. It’s disappointing to admit that a law which allows sharing information with a lawyer is considered progress, but it’s a reminder of how backwards some Patriot Act provisions are.

Of course, the USA FREEDOM Act does not solve the actual problem, which is that the FBI can still issue NSLs without any judicial oversight. Police are required to go to judges with evidence before they are issued a warrant. If the FBI is not held to a similar standard, NSLs essentially act as unsigned warrants which allow for unchecked power and the abuse that comes with it. I believe we should continue to fight for the abolition of NSLs, as all law enforcement actions need to be accountable. Even the President’s Review Group on Intelligence and Communications Technologies suggested that NSLs be subject to more stringent oversight (p. 89).

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