Barton Gellman of the Washington Post has a terrific article: The FBI’s Secret Scrutiny, on the rising use of National Security Letters, the secret subpoenas the government can use to collect information on communications and transaction information. The constitutionality of NSLs was challenged before the Second Circuit last week.
The Post did some careful sleuthing to find the details of of some recent NSL uses:
The Washington Post established their identities — still under seal in the U.S. Court of Appeals for the 2nd Circuit — by comparing unsealed portions of the file with public records and information gleaned from people who had no knowledge of the FBI demand.
When more than 30,000 NSLs are served each year, on mere suspicion that the records sought will be relevant to terrorist investigation, it’s likely some of the demands will overreach. Yet the total, perpetual secrecy that enshrouding the demands prevents the public from learning enough to challenge them. The government can dismiss the stories that do come out — like the demand for records of all visitors to Las Vegas in December 2003 — as aberrations, and the public can do little to verify that the situation has changed.
The examples the Post collects are more than anecdotes: the Connecticut library asked for all records of a particular computer’s use, records that could include books checked out, emails composed in a webmail system, or web pages visited, perhaps with patron-identifying details; the North Carolina school asked for all records pertaining to a former student who was later exonerated from any suspicion but whose records the government will not expunge; the Las Vegas hotels and casinos asked to rat out all their guests. Without systematic government accountability for NSLs, we can only assume that these examples are the norm. The government has never pointed to a case in which evidence gathered by NSL helped thwart or prosecute terrorism, the Post adds.
The ACLU argued forcefully for the NSL statute’s unconstitutionality last week. The statute’s secrecy provisions deny those with the most incentive to challenge it — those whose data is gathered — the knowledge that they have a challenge to raise. Perpetual secrecy denies the public the ability to evaluate tradeoffs between liberty and security. By peeling back the veil of secrecy just a bit, this Post story shows how much of the debate we’re missing — and why the entire secrecy statute should be declared unconstitutional.