Today's Washington Post reports that the Obama Administration is seeking further expansion of the FBI's power to issue National Security Letters (NSLs) and spinning the expansion as a "technical fix."
The administration wants to add just four words -- "electronic communication transactional records" -- to a list of items that the law says the FBI may demand without a judge's approval. . . . But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters.
The Obama administration's "look forward" mentality apparently also means ignoring the FBI's dismal track record when it comes to NSLs.
Having done practically nothing to rein in post-9/11 surveillance powers and plenty to retain them (such as the administration's support for renewing the PATRIOT Act without civil liberties safeguards, including NSL reform), the White House now seeks to give the FBI more power to invade privacy in the very arena where the FBI has abused power in the past.
Since first gaining the expanded NSL power (courtesy of the PATRIOT Act) and employing it liberally (the FBI's use of NSLs skyrocketed from under 10,000 in 2000 to almost 40,000 in 2003), the FBI has proven that it cannot responsibly handle the power, which allows collection of personal information without court oversight and the likely unconstitutional ability to gag NSL recipients.
The Department of Justice Inspector General (DOJ IG) has on several occasions documented the FBI's extensive abuse of the NSL power. A March 2007 Report found the FBI's abuse of power included a failure to accurately monitor the number of NSLs issued and the FBI using so-called "exigent circumstances letters" to sidestep legal standards.
As it turns out, the first reports of abuse were just the tip of the iceberg. A 2008 follow-up DOJ IG Report on the FBI's use of NSLs showed similar abuses, and a 2010 follow-up DOJ IG Report revealed that the FBI's use of the illegal exigent letters was far more systematic and widespread than originally reported.
In light of these abuses and the constitutionally-questionable gag order that inevitably accompanies NSLs, Rep. Jerrold Nadler (D -NY) introduced bipartisan legislation (the National Security Letter Reform Act of 2009) that would rein in the NSL power and add critical civil liberties and privacy protections.
Yet despite Obama's campaign promises to protect civil liberties and countless instances of FBI abuse, the White House has no qualms about lobbying for further expanding the FBI's NSL powers instead of pushing measures that would bring oversight and accountability.
Meanwhile, the unmentioned fact as the White House seeks expansion of the NSL power will inevitably be that NSL's are just one of many ways that the FBI can get information, and, should the FBI have "probable cause," (a standard that the surveillance-power-seeking spin machine makes seem insurmountable, but that has been effectively used for years) a good old-fashioned, Fourth Amendment-friendly warrant can allow the FBI access to any suspect's "electronic communication transactional records."