Monday, May 01, 2006

National Security Letters

In 2005, the FBI “delivered a total of 9.254 security letters relating to 3,501 people,” seeking information from their banks and credit-card, telephone and Internet companies “without a court’s approval.”[1] In addition to the National Security Letters [hereinafter NSL], the Foreign Intelligence Surveillance Court [hereinafter FISC], “also approved 2,072 special warrants last year for secret wiretaps and searches of suspected terrorists and spies,” which is twice the number of those issued in 2000.[2]

We last mentioned NSLs in , in connection with litigation filed by the American Library Association and the American Civil Liberties Union. At the time of that litigation, the NSL law, 18 U.S.C. § 2709, stated that wire or electronic communication service providers are required to comply with requests for subscriber information, toll billing information, or transactional records. To get those records, the Director of the FBI, a designated Deputy Assistant Director, or a Special Agent in Charge of a Bureau field office, can request the name, address, and length of service of a person or entity from such a provider, by certifying in writing that the information sought is relevant to an authorized investigation to protect against international terrorism. No court is involved in this request. The service provider, at that time, could not disclose that the FBI had sought this information, nor could the person who received such a letter. Earlier this April, the FBI dropped its bid to bar the library that was the subject of our August posting from identifying itself.[3]

This is because the USA PATRIOT Act was amended when it was renewed earlier this year.[4] It created a new statute, 18 U.S.C. § 3511 which states that the recipient of a NSL may petition to have a court modify or set aside the request if compliance would be unduly oppressive or otherwise unlawful.[5] Furthermore, the recipient may petition a court of have a nondisclosure requirement modified or set aside.[6] If there is a nondisclosure requirement, the recipient may consult with an attorney.[7]

The somewhat tempered controversy surrounding domestic surveillance in the United States, as well as the disclosure that the Bush administration had ordered the NSA to conduct surveillance without seeking warrants from the FISCs, has prompted the Canadian federal watchdog to conduct an investigation of its own intelligence services.[8] The chief of Canada’s “ultra-secret” Communications Security Establishment [hereinafter CSE], John Adams, “was forced to respond to detailed inquiries spanning two months from the office of Antonio Lamer, the former Supreme Court chief justice who, as CSE commissioner, serves as watchdog over the spy outfit.”[9] Mr. Lamer wanted to ensure that CSE “wasn’t contravening Canadian law by conducting excessive snooping in the fight against terrorism.”[10] According to some publicly disclosed letters, Mr. Adams has “tried to reassure the commissioner that noting improper had occurred, saying, ‘Our legislation and public profile have driven the creation of extensive internal measures aimed at ensuring respect for the law and the rights of Canadians,’” insisting that, by virtue of Canadian law, “the CSE still cannot directly target the communications of Canadians.”[11]


[1] Mark Sherman, , Associated Press (via Seattle Times), Apr. 28, 2006.
[2] Id.
[3] See , Reuters (via ABC News), Apr. 12, 2006.
[4] See USA PATRIOT Improvement and Reauthorization Act of 2005, (2006).
[5] Id. § 115.
[6] Id.
[7] Id. § 116. (Amending 18 U.S.C. § 2709.)
[8] Jim Bronskill, , Canadian Press (via Canada.com), Apr. 30, 2006.
[9] Id.
[10] Id.
[11] Id.

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posted by McNabb Associates, P.C. @ 2:20 PM