ACLU Challenges National Security Letters In Congress And Court

April 15, 2008

Group Testifies Before House Committee And Files Lawsuit Demanding FBI Records About NSL Abuse

FOR IMMEDIATE RELEASE
CONTACT: (202) 675-2312 or media@dcaclu.org;
(212) 549-2666 or media@aclu.org

WASHINGTON – The American Civil Liberties Union is challenging National Security Letter (NSL) statutes on two fronts today, testifying before Congress and filing a lawsuit in federal court in its fight to end the government's abuse of NSL powers. NSLs, secretly issued by the government, 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. The ACLU and representatives from the Department of Justice will testify before the House Judiciary Subcommittee on Constitution, Civil Rights and Civil Liberties at a hearing on a bill introduced by the committee's chairman, Representative Jerrold Nadler (D-NY), entitled "The National Security Letters Reform Act of 2007."

"As it stands, the NSL statutes invite abuse and both the FBI and Department of Defense have repeatedly accepted that invitation by manipulating the powerful tool Congress gave them," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "In the past two years the Department of Justice's Inspector General has released consecutive reports lambasting the FBI for its systematic exploitation of NSLs. The FBI's solution of creating stricter internal guidelines is futile since the bureau has proven time and again it cannot police itself. If Congress doesn't move quickly to bring this authority in line with the Constitution, there's no doubt there will be further misuse and misconduct."

"The current National Security Letters statutes do not appropriately protect the privacy of innocent people," said ACLU National Security Project Director Jameel Jaffer, who will testify at today's hearing. "Congressman Nadler's bill would preserve the government's ability to investigate people who are actually security threats, but it would also provide important – and constitutionally required – safeguards for civil liberties."

The ACLU and New York Civil Liberties Union also filed a federal lawsuit in New York today to uncover the extent of the FBI's misuse of National Security Letter powers. Specifically, the lawsuit seeks the release of records pertaining to the FBI's use of NSLs at the behest of other agencies including the Department of Defense (DoD) as well as documents concerning the FBI's use of its gag power. Newly un-redacted documents released to the ACLU last month in a separate Freedom of Information Act (FOIA) lawsuit revealed that the Defense Department is 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.

Earlier this 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 American public has a right to know if the FBI is flouting the law by issuing National Security Letters on behalf of other agencies and whether it is improperly gagging NSL recipients," said L. Danielle Tully, an attorney with the ACLU. "The FBI cannot be trusted to police itself. Only through greater transparency, stricter guidelines and meaningful oversight can we begin to disentangle this mess."

Putting the issue of NSL abuse further under the microscope, the ACLU released a memo on last month's OIG report regarding the FBI's ongoing abuse of its NSL and Section 215 powers. In the memo, the ACLU highlights the FBI's continuing use of gags on NSL recipients and notes, 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 highlights 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.

Attorneys in today's lawsuit against the FBI are Jaffer, Tully and Melissa Goodman of the ACLU National Security Project and Arthur Eisenberg of the NYCLU. The legal complaint is available at:
www.aclu.org/safefree/nationalsecurityletters/34889lgl20080415.html

The ACLU's testimony can be read at:
www.aclu.org/safefree/nationalsecurityletters/34891leg20080415.html

All of the documents obtained by the ACLU in its separate FOIA lawsuit against the Defense Department are available at:
www.aclu.org/safefree/nationalsecurityletters/32088res20071014.html

The ACLU's memo on the recent OIG report on NSLs can be found at:
www.aclu.org/safefree/nationalsecurityletters/34805leg20080407.html

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

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