Phone Company Fights National Security Letter In Court

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Internet operator Nicholas Merrill received a National Security letter in 2004. He describes his experience.

The fact that this lawsuit seems to involve CREDO makes me wonder if the feds aren't simply going after left-wing political activists, and not terrorists. I am deeply disappointed over the Obama administration's willingness to expand the warrantless surveillance state, but not surprised. It would be the same no matter who won the election -- once this kind of power is legitimized, it is certain that it will be used. From the Wall Street Journal:

Early last year, the Federal Bureau of Investigation sent a secret letter to a phone company demanding that it turn over customer records for an investigation. The phone company then did something almost unheard of: It fought the letter in court.

The U.S. Department of Justice fired back with a serious accusation. It filed a civil complaint claiming that the company, by not handing over its files, was interfering "with the United States' sovereign interests" in national security.

The legal clash represents a rare and significant test of an investigative tool strengthened by the USA Patriot Act, the counterterrorism law enacted after the attacks of Sept. 11, 2001.

The case is shrouded in secrecy. The person at the company who received the government's request—known as a "national security letter," or NSL—is legally barred from acknowledging the case, or even the letter's existence, to almost anyone but company lawyers.

"This is the most important national-security-letter case" in years, said Stephen Vladeck, a professor and expert on terrorism law at the American University Washington College of Law. "It raises a question Congress has been trying to answer: How do you protect the First Amendment rights of an NSL recipient at the same time as you protect the government's interest in secrecy?"

Although they can't legally confirm it, they go on to say that the process of elimination appears to point to Working Assets, which owns CREDO.

In the challenge playing out in California, the company is fighting the letters on constitutional grounds. It is arguing, among other things, that the gag orders associated with most of these letters improperly restrain speech without a judge's authorization.

The FBI says it must maintain the secrecy of national security letters to avoid tipping off potential terrorists. The letters are "critical to our ability to keep the country safe," then-Acting Assistant Attorney General for National Security Todd Hinnen told the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security last year.

National security letters were originally for FBI investigations where there were "specific and articulable facts" indicating the information was related to a foreign agent. The Patriot Act eliminated the requirements for specific facts and a link to a foreign agent.

Since then, use of the letters has increased. In 2000, there were about 8,500 such requests; last year, the FBI made 16,511, according to the Justice Department. That number includes letters asking for things such as records of the numbers called by a phone, or the "to" and "from" lines of emails, but it doesn't count requests that ask only what subscriber is associated with an account. Including those, more than 49,000 requests were sent in 2006, according to a report from the Justice Department's inspector general.


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