Despite the post-Snowden spotlight on mass surveillance, the intelligence community’s easiest end-run around the Fourth Amendment since 2001 has been something called a National Security Letter.
FBI agents can demand that an Internet service provider, telephone company or financial institution turn over its records on any number of people — without any judicial review whatsoever — simply by writing a letter that says the information is needed for national security purposes. The FBI at one point was cranking out over 50,000 such letters a year; by the latest count, it still issues about 60 a day.
The letters look like this:
Recipients are legally required to comply — but it doesn’t stop there. They also aren’t allowed to mention the order to anyone, least of all the person whose data is being searched. Ever. That’s because National Security Letters almost always come with eternal gag orders. Here’s that part:
That means the NSL process utterly disregards the First Amendment as well.
More than a year ago, President Obama announced that he was ordering the Justice Department to terminate gag orders “within a fixed time unless the government demonstrates a real need for further secrecy.”
And on Feb. 3, when the Office of the Director of National Intelligence announced a handful of baby steps resulting from its “comprehensive effort to examine and enhance [its] privacy and civil liberty protections” one of the most concrete was — finally — to cap the gag orders:
In response to the President’s new direction, the FBI will now presumptively terminate National Security Letter nondisclosure orders at the earlier of three years after the opening of a fully predicated investigation or the investigation’s close.
Continued nondisclosures orders beyond this period are permitted only if a Special Agent in Charge or a Deputy Assistant Director determines that the statutory standards for nondisclosure continue to be satisfied and that the case agent has justified, in writing, why continued nondisclosure is appropriate.
Despite the use of the word “now” in that first sentence, however, the FBI has yet to do any such thing. It has not announced any such change, nor explained how it will implement it, or when.