National Security Letter ruling awaits appeal to 9th Circuit

National Security Letters represent a threat to government watchdogs. They are unconstitutional - for now. Photo: Columbia Pictures

WASHINGTON, March 16, 2013 — A federal judge has ruled that the federal government must stop issuing and enforcing National Security Letters. U.S. District Judge Susan Illston ruled that NSLs are unconstitutional.

NSLs are used to secretly inspect dialed phone numbers, sent/received email address logs, and email header information of targeted Americans. Illston’s ruling represents a win for journalists who use these technologies to follow up leads, talk to government whistle-blowers, investigate corruption, and report on government cover-ups.

Illston’s order does not just ban NSLs; it also orders the FBI to stop enforcing the gag orders that accompany them. These gag orders prevent the companies that receive NSLs from disclosing that any information that would be useful to the people whose information is being probed. Google disclosed vague information when it revealed that it had been ordered to turn over data on thousands of its users, but was unable to reveal more than that.

Illston’s order has been stayed for ninety days, pending a Justice Department appeal to the 9th Circuit Court of Appeals.

The use of National Security Letters

The federal government has people within its own ranks that it would prefer not talk to journalists, aside from those barred from revealing classified information.

For example, Senator Lindsey Graham’s alleges “that the injured survivors of the Benghazi terror attack have been ‘told to be quiet’ and feel they can’t come forward to tell their stories” according to a Fox News report released yesterday:

“A congressional source tells Fox News that Hill staffers investigating the attack believe about 37 personnel were in Benghazi on behalf of the State Department and CIA on Sept. 11. With the deaths of Ambassador Chris Stevens and three others, about 33 people were evacuated. Of them, a State Department official confirmed there were three diplomatic security agents and one contractor who were injured in the assault - one seriously.”

In the case of the Benghazi attack, many of the key players and witnesses are likely to have security clearances and are banned from disclosing classified information.  After the attacks, the government may have moved to hastily classify more details surrounding the events of September 11, 2012.  

Using National Security Letters, the government can force phone companies, wireless carriers, internet service providers, and webmail hosts to hand over the dialed phone number, sent/received email logs and email header content belonging to everyone who was present during the Benghazi attack.  The communication provider companies turning over the information are not permitted to tell anyone, including the customers under surveillance, what is happening behind the scenes.

Taking the Benghazi example further, the government can issue additional National Security Letters targeting the communication logs of all friends and family members of those connected to the Benghazi scandal.

If any of these individuals in turn make any phone calls or send any emails to a newspaper editor, TV reporter, blogger, U.S. Senator, U.S. Representative, or anyone else, the government can elect to issue NSLs for those individuals as well.  

The government can also send NSLs to the wireless and internet service providers of any journalists covering the Benghazi story who they suspect may be communicating with any witnesses who have information about what happened on that day. Using that information, the government could exert additional pressure to stay quiet on insiders who they now know are talking to journalists.

In 2011 alone, epic.org, the website of the Electronic Privacy Information Center, reports that the FBI made 16,511 National Security Letter requests for information pertaining to 7,201 different Americans.

Although the Benghazi example is only theoretical, it demonstrates how quickly and widely the surveillance grid watching journalists and other U.S. citizens can expand through the use of NSLs.

 


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Alan Jones

Alan Jones is an investigative journalist covering a wide range of areas.  He has worked in the financial industry and has lived overseas.

 

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