We knew in 2005 about the unprecedented amount of National Security Letters issued

There was a concern expressed that the provisions could be abused, in the Congressional Research Service Report issued to Congress April 15, 2005 in anticipation of the changes to the Patriot Act.


http://www.fas.org/sgp/crs/natsec/RS22122.pdf

Administrative subpoena authority, including closely related national security letter authority, is the power vested in various administrative agencies to compel testimony or the production of documents or both in aid of the agencies’ performance of their duties. Both the President and Members of Congress have called for statutory adjustments relating to the use of administrative subpoenas and national security letters in criminal and foreign intelligence investigations. One lower federal court has found the sweeping gag orders and lack of judicial review that mark one of the national security letter practices constitutionally defective. Proponents of expanded use emphasize the effectiveness of administrative subpoenas as an investigative tool and question the logic of its availability in drug and health care fraud cases but not in terrorism cases. Critics suggest that it is little more than a constitutionally suspect “trophy” power, easily abused and of little legitimate use.

Background and Proposed Adjustments, CRS Report
RL32880.


Section 505 of the USA PATRIOT Act amended the FBI’s national security letter authority over communications records, and the records of financial institutions and credit agencies. In each instance, the amendment (1) makes it clear that demands can be issued by the agents in charge of the various FBI field offices, (2) substitutes a relevancy standard for the earlier “reason to believe” standard, (3) drops the requirement that the records are those of a foreign power or its agent, and (4) asserts that access may not be sought in connection with an investigation based solely on an American’s exercise of his First Amendment rights.

Subsection 358(g) of the USA PATRIOT Act added a new national security letter section within the Fair Credit Reporting Act available to any government agency investigating international terrorism, 15 U.S.C. 1681v. Although the subsection’s legislative history treats it as a matter of first impression, Congress’ obvious intent was to provide other agencies with the national security letter authority comparable to that enjoyed by the FBI under the Fair Credit Reporting Act, as it did in subsection 358(f) with respect to the national security letter authority in the Right to Financial Privacy Act. The section has a nondisclosure and a safe harbor subsection, but no express means of judicial enforcement or penalties for improper disclosure of a request under the section.

CRS report: http://www.fas.org/sgp/crs/natsec/RS22122.pdf


from 2005:


The FBI's Secret Scrutiny
In Hunt for Terrorists, Bureau Examines Records of Ordinary Americans

By Barton Gellman
Washington Post
Sunday, November 6, 2005; Page A01

{snip

The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters -- one of which can be used to sweep up the records of many people -- are extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans.

Issued by FBI field supervisors, national security letters do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress. The executive branch maintains only statistics, which are incomplete and confined to classified reports. The Bush administration defeated legislation and a lawsuit to require a public accounting, and has offered no example in which the use of a national security letter helped disrupt a terrorist plot.

The burgeoning use of national security letters coincides with an unannounced decision to deposit all the information they yield into government data banks -- and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for "state, local and tribal" governments and for "appropriate private sector entities," which are not defined.

National security letters offer a case study of the impact of the Patriot Act outside the spotlight of political debate. Drafted in haste after the Sept. 11, 2001, attacks, the law's 132 pages wrought scores of changes in the landscape of intelligence and law enforcement. Many received far more attention than the amendments to a seemingly pedestrian power to review "transactional records." But few if any other provisions touch as many ordinary Americans without their knowledge.

Senior FBI officials acknowledged in interviews that the proliferation of national security letters results primarily from the bureau's new authority to collect intimate facts about people who are not suspected of any wrongdoing. Criticized for failure to detect the Sept. 11 plot, the bureau now casts a much wider net, using national security letters to generate leads as well as to pursue them. Casual or unwitting contact with a suspect -- a single telephone call, for example -- may attract the attention of investigators and subject a person to scrutiny about which he never learns.

A national security letter cannot be used to authorize eavesdropping or to read the contents of e-mail. But it does permit investigators to trace revealing paths through the private affairs of a modern digital citizen. The records it yields describe where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work.

As it wrote the Patriot Act four years ago, Congress bought time and leverage for oversight by placing an expiration date on 16 provisions. The changes involving national security letters were not among them . . .

more: http://www.washingtonpost.com/wp-dyn/content/article/2005/11/05/AR2005110501366_pf.html


Washington Post's Response to DOJ Patriot Act Letter

Monday, December 5, 2005; 7:00 AM

A 10-page letter from the Justice Department to the House and Senate Judiciary Committee chairmen (http://www.washingtonpost.com/wp-srv/nation/documents/dojletter112305.pdf), dated Nov. 23 and distributed widely, took issue with a Nov. 6 article (http://www.washingtonpost.com/wp-dyn/content/article/2005/11/05/AR2005110501366.html) in The Washington Post about the FBI's use of "national security letters" under the Patriot Act. The Washington Post published an article about the Justice Department letter and washingtonpost.com reprints it in full. What follows is The Post's reply to assertions that the article contained "many ... distortions and falsehoods": http://www.washingtonpost.com/wp-dyn/content/article/2005/11/29/AR2005112901655.html

The Justice Department did not authorize interviews for the disputed article before it appeared or respond to questions sent by email.

The Nov. 23 letter to Congress from Assistant Attorney General William E. Moschella said The Post created the false impression that national security letters empower the FBI "to listen to phone calls or read emails."

The article in fact said the reverse: "A national security letter cannot be used to authorize eavesdropping or to read the contents of e-mail."

Moschella's letter offered 17 additional allegations of factual error. Many relied on assertions that the article implied or insinuated things it did not, in fact, say. The Justice Department objections are summarized: http://www.washingtonpost.com/wp-dyn/content/article/2005/12/05/AR2005120500215_pf.html

and were mouthing off that "if you had nothing to hide then you have nothing to fear...so what's the problem?"

my my how their tune has changed...

still believe bush when he says "trust me"?