The Obama administration supposedly reformed a controversial national security practice this week—but buried in their big “reform” is a fat exception, which in practice makes the change worthless.
Every year, the FBI hands out thousands of “national security letters”—letters demanding that businesses hand over private records in the name of national security investigations. They include gag orders, leaving recipients unable to tell anyone they’ve even communicated with the agency.
Up to now, these gag orders could remain effective indefinitely. The “reformed” law limits them to three years, or the conclusion of the investigation.
But the Huffington Post has since reported, tipped off by an anonymous surveillance target, that the law grants an exception that essentially undermines the entire rule. FBI agents can authorize themselves to maintain the gag order past the three-year deadline, with permission from a supervisor.
“This exception is essentially full discretion to FBI officials,” Andrew Crocker of the Electronic Frontier Foundation said. “It is an exception that doesn’t have a lot of standards associated with it. This is kind of the problem with the (national security letter) statute to begin with.”
The FBI sent 21,000 of these letters in fiscal year 2012 alone. Although one phone company has fought back against their orders, even the name of the dissenting company has remained a guarded secret.
Several years ago, Nicholas Merrill, the owner of a small Internet service provider, seized national attention when he went public with his experience after a long legal battle.
When an FBI agent hand-delivered him a letter, which warned him against telling “any person” that they had contacted him, he went to the ACLU with his case. “I was unable to tell my family, friends, colleagues or my company’s clients, and I had to lie about where I was going when I visited my attorneys,” he would later recall. Years later, he is still prohibited from disclosing what information the government had asked him to hand over.
Merrill told the Huffington Post that this latest “reform” is not enough. “The issue at hand is that the government doesn’t want me to discuss what was in the third page of the (national security letter) I received, namely, the types of data they demanded (and I did not hand over),” Merrill said. “The problem with not being able to discuss that openly, is that is the heart of the public policy issue — what kinds of information can the government get on an innocent citizen without a warrant, or even any suspicion of wrongdoing.”
