ACLU challenges FBI use of secret letters to obtain Internet provider
records
By Curt Anderson, The Associated Press Apr 28 2004 1:56PM
The American Civil Liberties Union is challenging the FBI's use of
expanded powers to compel Internet service providers to turn over
information about their customers or subscribers.
A lawsuit challenging secret FBI national security letters was filed
April 6 in U.S. District Court in New York but not made public until
Wednesday because of its extraordinary sensitivity.
The FBI can issue national security letters, or NSLs, without a
judge's approval in terrorism and espionage cases. They require
telephone companies, Internet service providers, banks, credit
bureaus and other businesses to produce highly personal records about
their customers or subscribers.
People who receive the letters are prohibited by law from disclosing
to anyone that they did so. Because of this legal gag order, the ACLU
was forced to reach an agreement with the Justice Department before a
heavily edited version of the lawsuit could be unsealed.
"We believe the public has a right to know much more about this
lawsuit," said Ann Beeson, ACLU associate legal director.
Justice Department and FBI officials declined comment on the case.
The lawsuit challenges as unconstitutional one of several types of
national security letters used by the FBI in counterintelligence and
counterterrorism investigations.
The letters in question involve records held by Internet service
providers about their clients, including billing information, kinds
of merchandise the clients buy online and the e-mail addresses of the
clients' associates. The co-plaintiff in the case is identified only
as an "Internet access business," with other identification blacked
out.
The ACLU lawsuit contends that the Patriot Act, an antiterrorism law
passed shortly after the 2001 terror attacks, expanded the FBI's
power to use national security letters by deleting parts of an
earlier law requiring that there be some suspicion that the subject
of the probe was linked to spying or terrorism.
"As a result of the Patriot Act, the FBI may now use NSLs to obtain
sensitive information about innocent individuals who have no
connection to espionage or terrorism," the lawsuit says.
An FBI guidance document to its field offices acknowledges that the
Patriot Act "greatly broadened" FBI authority to use these letters in
relevant investigations. But the document says that FBI supervisors
must exercise care in their use, particularly because that part of
the Patriot Act is set to expire in 2005 unless renewed by Congress.
"Supervisors should keep this in mind when deciding whether or not a
particular use of NSL authority is appropriate," the FBI document
says.
The lawsuit contends that NSLs are unconstitutional because of the
gag order, because a recipient has no way of challenging their
validity and because the government is not forced to justify its
reasons for not notifying the target about the records being sought.
The ACLU has also filed a lawsuit challenging another part of the
Patriot Act that allows the FBI to obtain a variety of records and
documents in terrorism and espionage cases by obtaining a warrant
from the secret Foreign Intelligence Surveillance Court.
President Bush has been pushing Congress to renew all of the Patriot
Act before it expires next year, arguing that it is one of law
enforcement's best tools in preventing another catastrophic terrorist
attack.
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