Thursday, January 1, 2015

When FISA Court Rejects Surveillance Requests, the FBI Just Issues a National Security Letter Instead

(illustration: unknown)

When FISA Court Rejects Surveillance Requests, the FBI Just Issues a National Security Letter Instead

By Mike Masnick, Tech Dirt
31 December 14

We've talked quite a bit about National Security Letters (NSLs) and how the FBI/DOJ regularlyabused them to get just about any information the government wanted with no oversight. As a form of an administrative subpoena -- with a built in gag-order -- NSLs are a great tool for the government to abuse the 4th Amendment. Recipients can't talk about them, and no court has to review/approve them. Yet they certainly look scary to most recipients who don't dare fight an NSL. That's part of the reason why at least one court found them unconstitutional.

At the same time, we've also been talking plenty about Section 215 of the PATRIOT Act, which allows the DOJ/FBI (often working for the NSA) to go to the FISA Court and get rubberstamped court orders demanding certain "business records." As Ed Snowden revealed, these records requests can be as broad as basically "all details on all calls." But, since the FISA Court reviewed it, people insist it's legal. And, of course, the FISA Court has the reputation as a rubberstamp for a reason -- it almost never turns down a request.

However, in the rare instances where it does, apparently, the DOJ doesn't really care, knowing that it can just issue an NSL instead and get the same information. At least that appears to be what the DOJ quietly admitted to doing in a now declassified Inspector General's report from 2008. EFF lawyer Nate Cardozo was going through and spotted this troubling bit:

If you can't read it, it says:

We considered the Section 215 request for [REDACTED] discussed earlier in this report at pages 33 to 34 to be a noteworthy item. In this case, the FISA Court had twice declined to approve a Section 215 application based on First Amendment Concerns. However, the FBI subsequently issued NSLs for information [REDACTED] even though the statute authorizing the NSLs contained the same First Amendment restriction as Section 215 and the ECs authorizing the NSLs relied on the same facts contained in the Section 215 applicants...

In other words, the FBI had a neat way to get around a rare FISA Court rejection: just issue an NSL and ignore the First Amendment concerns.

Apparently, to some, whatever weak "oversight" there is from the FISA Court really just means "find another door in to violate the same Constitutional issues."

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