FBI ISP Letters May Have Violated Free Speech

Anti-Globalism sends in a Reuters account of an appeals court hearing in which an unnamed ISP is challenging the Patriot Act "National Security Letter" provision that allows the FBI to issue secret letters to ISPs and telecoms, demanding customer records. "A panel of federal appeals court judges pushed a US government lawyer on Wednesday to answer why FBI letters sent out to Internet service providers seeking information should remain secret. ... Between 2003 and 2006 nearly 200,000 national security letters were sent out. Of those about 97 percent received gag orders."

Comments

At last

[monsul]

Nice seeing someone in the ISP world is concerned about basic rights like freedom of speech. If only we could know which ISP it was....

Re:At last

[chasingsol]

Well, the judge ruled out Verizon and AT&T by using them as examples. Considering the relatively limited number of large ISP's in the USA, the chance is that it was directed at the largest of all... Comcast. I doubt a smaller ISP would dare go up against the federal government, lawuits such as these are notorious for taking years (decades?) to go anywhere. Unfortunately, it would seem likely that ultimately the lawsuit will be thrown out for "national security" reasons, as so many others have since the passing of the Patriot Act.

Re:At last

[Smallpond]

On the contrary, a big company like Comcast has too much to lose to rock the boat. A small, private ISP is less likely to be worried about shareholders since it may be employee-owned by people with strong convictions about freedom.

Re:At last

[mi]

They will be the first ones the FCC shuts down.

Two questions:

1. Has FCC shut anybody down yet?
2. Do you still feel, requiring government license for very simple activities:
   • investigating (cough, MediaSentry, cough)
   • plumbing
   • serving liquor
   • driving

   is a good idea? The licenses for all these pursuits, which are considered a "privilege, not a right," can be taken away — by the Executive Government (such as FCC) — on a whim, without any court-decision. At best, you may be able to get a court-order of your own to get the license restored — but you will be the plaintiff with the "burden of proof" on your hands, and you will have to convince the court you are right, rather than simply poke a few holes in the other side's argument...

It's not a violation........

[budword]

if breaking the law is never punished.

200,000?

[KwKSilver]

The FBI thinks there are 200,000 terrorists here!!?? Arent we in Iraq to keep from having them here. If there were 200,000 terrorists here there would be bombings every day. A number like 200,000 suggests to me that there is something other than terrorism of interest ... like screwing political opponents of the Bush regime.

Re:200,000?

[Curunir_wolf]

It's not that there are 200,000 terrorists, it's just that they felt they needed that many letters while trying to track down the 5-10 terrorists they're looking for.

Kind of like sending 140,000 troops to Iraq to try to find 1 guy who is hiding somewhere on the Afghanistan Pakistan border. There's nothing so inefficient as government bureaucracy.

Re:200,000?

[Dionysus]

The US is in Iraq because George Bush, his advisors, and many corporations want the US to be in Iraq.

You forgot about the people who support and reelected Bush.

Re:200,000?

[m.ducharme]

Oh right, Diebold, Sequoia Systems, ESS, and almost half of the ordinary folks. You're correct.

Re:200,000?

[Tenebrousedge]

I am perfectly willing to become a "bad guy" if my government continues to commit heinous crimes in the name of "the People" .

Classic Corruption of Power

[bigtallmofo]

If the FBI writes a letter to an ISP to investigate possible criminal activity done by one of their customers through that ISP, it makes sense that the ISP shouldn't be allowed to tell the target they're being investigated.

However... 200,000 letters in less than 4 years and 97% of them received gag orders? That's just plain ridiculous. It's a classic example of an organization receiving power and then abusing it.

So, it's time to take that power away from them.

Re:Classic Corruption of Power

[schon]

If the FBI writes a letter to an ISP to investigate possible criminal activity done by one of their customers through that ISP, it makes sense that the ISP shouldn't be allowed to tell the target they're being investigated.

No it doesn't - not even a little bit.

Now, if the FBI obtained a court-ordered *warrant* for an ISP to turn over information in regards to possible criminal activity, *then* it would make sense that the ISP shouldn't be allowed to tell the target they're being investigated (and I'm sure there's some mechanism that allows this.)

The critical difference of course, is judicial oversight. The FBI doesn't want to have to deal with warrants and their pesky inconveniences.

Re:Classic Corruption of Power

[plover]

Actually, taking the power away is the only historically effective solution. It will force the agencies impacted to re-evaluate their approach to surveillance, and to find a way to do it that complies with the law. That's what happened with wiretapping, and it ultimately led to the creation of the FISA court (the overseeing body you noted is missing from the current equation.)

However, the USA PATRIOT Act's current expansion of monitoring explicitly sidestepped the FISA mechanism for reasons that were never made clear. FISA was never a barrier to legitimate investigations as they approved over 99% of all interceptions, and the law was written to provide retroactive reporting to the court in the case of current activity. (Some agencies misinterpreted the clause to mean they couldn't communicate with each other, but this mistake was never tested in a courtroom -- they just hamstrung themselves under the misunderstanding.) While I'm not a fan of secret courts in a free country, I understand the need for secrecy in these cases, and FISA was a very Solomonic compromise.

Anyway, if we take it away and the FBI can't find a way to get the job done legally, then it simply was too much power in the first place.

Re:Only 97%?

[chasingsol]

The solution is to have some kind of oversight. FISA is less than ideal, since it's secret, but there are perfectly good national security reasons for keeping some things that way. With the issuing over 200,000 unvetted letters such as these which typically automatically contain a gag order, I also cannot fathom how this FBI power is being used responsibly and not abused. I am a firm believer in the need for a government to conduct certain actions in secret, but we risk a complete erosion of our constitutional rights when a government is given such a powerful tool with absolutely zero oversight, secret or otherwise.

Not unconstitutional on their face

[MikeRT]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Secret warrants may be shady and sleazy, but they're perfectly in line with the 4th amendment. The 1st amendment also has security restrictions on it by court precedent, thus I think they'll have a hard time arguing that they have a first amendment right to tell their customers about a NSL.

Re:Not unconstitutional on their face

[chasingsol]

Here's your problem. The 4th amendment is typically protected by a judge signing the search warrant, which provides oversight against abuses. Even the secret FISA court provides oversight. The problem here, there is NO oversight whatsoever. That's not conforming to the spirit of the 4th amendment at all.

Re:Not unconstitutional on their face

[Felix Da Rat]

Not being able to tell the subject of the investigation is one thing, but the gag order in the NSL mean that recipients can't even speak to anyone about the letters. The only people they can speak to are people necessary to enforce the letter, who then become bound by the gag, and lawyers, who are (I believe) exempt. It's one of the reasons why these are so hard to fight.

Unfortunately, these gag orders also make it difficult to get any sort of feel for how they are being abused. From internal investigations, it is known that many of these letters overstep the Law, as they lack any judicial approval in their requests for information. But as people can't speak out about them, determining the impact these have had is almost impossible.

Finally, I am not okay with the concept of our Law Enforcement Officers being 'shady and sleazy'; even if it's within the letter of the law. If instead of sending letters, the FBI were to pull people from the street, interrogate them, and then threaten with jail to and keep them from speaking about it, would that be okay?

Re:Even if it's ruled unconstitutional...

[Anik315]

Yup, the Bush administration broke the law, and congress retroactively made a law making it legal.

Re:Domestic Terrorism and Organized Crime.

[DragonTHC]

you're forgetting that citizens of the USA have certain civil rights.

Domestic terrorism as you call it does not fall under the umbrella of "terrorism" legislation. It falls under regular law enforcement.

That's because they are US citizens. The article is about how the civil rights of citizens is being violated by the FBI, who know they aren't supposed to issue NSLs except under dire circumstances. The point is, the FBI has begun using NSLs in lieu of warrants because it just makes their job easier. It's illegal to do what they're doing.

Re:Free Speech and Privacy vs Security and Secrecy

[HiThere]

It's really too bad that there isn't a *UN*-insightful moderation.

I don't think this is a troll, or flamebait. Just stupid and un-foresightful...or possibly totally lacking in a knowledge of history, and how government actions creep, and leadership changes.

Were it possible to have an ideally honest and upright government, AND to rely on it staying that way, then this proposal would be reasonable. To believe in that at this point appears willful blindness.

Re:Free Speech and Privacy vs Security and Secrecy

[colinrichardday]

Accountability

And how do we hold government officials accountable?

In this day and age of terrorist activities, computer virus, electronic theft, etc..., the government (FBI, CIA, etc...) they do need to do their jobs and our Free Speech and our Privacy are both going to have to bend when our security depends on it.

Why? What if our liberties are more valuable than our security?

You can't have it all, and certainly for those out there who have NOTHING to hide, who don't perform any criminal ventures, I doubt they care if Big Brother is watching over them.

I would like something more substantial than your doubt that the government is confining its attention to actual criminals.

So, as long as these agencies are truly accountable for their actions, we must let them do their jobs, I think that's really what this is all about. We may not like it, but then again, it is what it is.

Again, given the secrecy involved, how do we hold agencies accountable? Also, what is this "it" in your "it is what it is"?

Any disaster, crime that can be prevented, certainly we are all for that, no?

Typical government disregard for costs. We do not have an infinite anti-terror budget, so the cost of preventing one terrorist act may be the foregone opportunity to have prevented twenty others.