Thursday, August 12, 2010

FBI Lifts Gag on National Security Letter Recipient

The FBI this week lifted its gag order on Nick Merrill, the operator of an internet service provider and the recipient of a 2004 National Security Letter (redacted version) ordering him to turn over records for one of his company's customers.  The FBI previously prevented Merrill from disclosing his receipt of the letter, and, as a result, this is the first time he could identify himself as Nick Merrill (and not "John Doe," as he's identified in litigation documents).

NSLs are orders by the FBI, authorized by 18 U.S.C. Sec. 2709, to telecommunications companies to turn over--without judicial review or order--records of customers relevant to terrorism investigations.

The FBI's action was part of a settlement last month in Merrill's long-running case--and first-ever case by the recipient of an NSL against the FBI--challenging the NSL program and the FBI's gag order as unconstitutional. The ACLU has a resource page, with a timeline and litigation material, here.

The settlement and gag order lift come at the same time that the Obama administration is pushing to clarify--or to expand, depending on the source--the FBI's authority to issue NSLs.  The current statute lists four types of information that the FBI can seek through NSLs: "the name, address, length of service, and local and long distance toll billing records," 18 U.S.C. 2709(b)(1).  The Office of Legal Counsel opined in 2008 that the list does not include other information, such as "electronic communication transactional records."  Now the Obama administration seeks to insert that four-word phrase into the list of things the FBI may request.

The administration says that this addition is a mere clarification to an ambiguous statute.  After all, it claims, the phrase appears in an earlier section of the statute, 18 U.S.C. 2709(a):

A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.

The OLC opined that the qualification "under subsection (b) of this section" limited the information that the FBI may seek to the four categories delineated in subsection (b)(1) (quoted above).  The administration claims that adding the new phrase to subsection (b) would simply clarify the scope of NSLs by mirroring the language in subsection (a).

Opponents of the measure claim that the addition would mark a dramatic increase in authority, allowing the FBI to seek subscriber information from everyone from Google to Facebook, and to potentially cover a much wider range of information--much more than just logs of e-mail addresses or websites visited.

Merrill's 2004 NSL specifically asked for "names, addresses, lengths of service and electronic communication transactional records, to include existing transaction/activity logs and all e-mail header information (not to include message content and/or subject fields) (emphasis added)--more than what (b)(1) allows (and broader than the 2008 OLC reading).  Thus Merrill's letter gives a glimpse of what an NSL letter might look like if the Obama administration gets its additional category under (b)(1).

SDS

http://lawprofessors.typepad.com/conlaw/2010/08/fbi-lifts-gag-on-national-security-letter-recipient.html

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