During the original PATRIOT Act debates, Attorney General John Ashcroft called librarians opposing the legislation “hysterical,” and now Valerie Caproni and Steven Siegel argue that criticism of NSLs is “hyperbole.” Caproni and Siegel repeat the FBI’s previous assertions that NSLs are “critical tools” in the government’s national security arsenal, but there is no public data to support this statement and, despite Caproni and Siegel’s denials, there is ample evidence this overbroad authority has been abused, as any unchecked power usually is.
The Founders designed our constitutional system of government to prevent abuse of power through checks and balances between the branches and robust procedural protections where the government attempts to deprive an individual of his or her rights. Indeed, the most fully developed processes for the protection of civil rights exists within the criminal justice system, which makes the Caproni-Siegel comparison of NSLs to grand jury subpoenas most misplaced.
The grand jury, made up of ordinary citizens, is designed to serve as an independent check on law enforcement authority by protecting people against unfounded charges. As the U.S. Attorneys’ Manual notes, the grand jury’s power is limited by its narrow function of determining whether to bring an indictment for a criminal violation, which reduces the risk of unnecessary suspicionless data collection.31 And in grand jury proceedings, the role of prosecutors, who are bound by the ethical obligations of their profession, is also a curb against law enforcement overreach. None of these protections exist with NSLs or other surveillance tools geared toward intelligence collection rather than criminal prosecution. The FBI has the sole discretion to issue NSLs with virtually no independent oversight. Moreover, a grand jury’s indictment only starts the criminal justice process, after which additional rights attach and affirmative discovery obligations are imposed on the government. The government’s obligation to disclose sources and methods of evidence gathering during trial is likewise a deterrent to improper collection, as the exclusionary rule compels suppression of illegally obtained evidence. The secrecy required in grand jury proceedings is designed to protect the privacy of the witnesses and individuals investigated, not to hide the government conduct from independent oversight and public accountability, as is the case with intelligence tools such as NSLs. Victims of NSL abuse have no way of knowing their rights have been violated, and no remedy.
The truth is that NSLs are intrusive tools. While the Supreme Court did fail to protect personal data held by third parties in 1976, as Caproni and Siegel point out, Congress then stepped in to protect financial, credit, and communications records, which most Americans consider sensitive and private information. The pre-PATRIOT NSL authorities Caproni and Siegel mention were limited to collecting information about suspected foreign agents or international terrorists. The PATRIOT Act expansion of NSL authorities allows the collection of data about any American the FBI deems “relevant” to an espionage or terrorism investigation, with no independent review. And given the technological advancements that have occurred since the Supreme Court’s 1976 decision, which now leave vast amounts of personal information unprotected on third-party servers, trusting the government to be judicious with its access to such data through NSLs or other tools is even more misplaced.
Caproni and Siegel also note that NSL recipients rarely challenge the government’s demands, which is not surprising given that NSLs seek records pertaining to someone other than the recipient. When the entities that hold private information show as little interest in protecting it as the government, everyone should worry. And it’s interesting that in the three cases in which NSL recipients challenged these demands, the government withdrew the NSL requests rather than defend them in court, thereby mooting challenges to the underlying statute and throwing into doubt the government’s justification for making these requests in the first place.
Finally, consider the FBI’s continuing minimization of the abuse discovered by the Inspector General. The FBI’s own audit found legal violations in 9.43 percent of its NSL files,32 and the IG later determined that the FBI underreported the number of NSL violations by a factor of three.33 These figures justify calling the abuse pervasive, and denying their importance only raises further skepticism that Americans can trust government agents with such unfettered power. The IG did indeed say the FBI made strides toward reform in 2008, but concluded, “. . . it is too soon to definitively state whether the new systems and controls developed by the FBI and the Department will eliminate fully the problems with the use of NSLs . . . .”34
31. UNITED STATES ATTORNEYS’ MANUAL 9–11.120, available at http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/11mcrm.htm#9-11.120.
32. 2008 NSL Report, at 8.
33. 2008 NSL Report, at 95.
34. 2008 NSL Report, at 15.