National Security Letters - Slipping Below the Public Conciousness

Now that we are all aware of the shenanigans at the NSA, the use of FISA and FISC to spy on us all, there is another means that the government (and its proxy organizations) have to demand detailed information about your private internet and other communications.

Your local FBI office is staffed with Special Agents who are responsible for conducting national security investigations and for the enforcement of more than 300 federal statutes.  These agents must be American citizens and must be at least 23 years of age before they can apply and may not apply after they are 37 years old.  They must have a four-year degree from an accredited college or university and three years of professional work experience.  They must qualify under one of five Special Agent Entry Programs which include accounting, computer science or information technology, language, law or diversified.  They must also pass a background check and a physical fitness test.  So, basically, they are nothing terribly "special".  Unfortunately, the same cannot be said for the power that they wield.

Now, let's look at the power that these Special Agents and their field supervisors have.  Let's say that for one reason or another, you find yourself in the FBI's figurative crosshairs (let's hope it's figurative!) for "security reasons".  Your friendly neighbourhood FBI Special Agent can simply sign what is called a National Security Letter (or NSL) that demands detailed information about you from your ISP or other communications provider without:

1.) A court review or approval.

2.) Telling you that you are the subject of an NSL.

3.) Actually suspecting you of a crime.

The FBI can then get your true identity, your IP address and the IP addresses of any websites that you may happen to pass through, the email address of everyone that you email or who email you and the time and duration of all of your communications.  This Letter also gives the FBI the right to access your private credit and banking information and, by law, the bank or organization is forbidden to notify you that you are the subject of an investigation.  These Letters are also never subject to review by the Department of Justice and do not require the authorization of a judge, grand jury or prosecutor.

Here's a cool graphic from the ACLU showing how the FBI uses National Security Letters:

Here's what one of these frightening letters looks like, noting the phrase that "you are advised that Title 18... prohibits any officer, employee or agent of yours from disclosing to any person that the FBI has sought or obtained access to information or records under these provisions.":

National Security Letters were created in the 1970s for the purpose of investigating terrorism and espionage and narrowly allowed the FBI to investigate the customer records of individuals that were suspected of being foreign agents.  Thanks to GW and the Patriot Act, the FBI has transformed the use of NSLs to include all United States residents and visitors, whether or not they are allegedly spies or terrorists.

Now that you've had a primer on yet another way that the government has to spy on the sweaty masses, I bet you're wondering how often the FBI uses National Security Letters, aren't you.  Fortunately, the Office of the Attorney General releases this information annually, pursuant to FISA.  Here is a copy of the letter submitted by the Department of Justice to the Majority Leader of the U.S. Senate for the calendar year 2012:

Notice that in the second last paragraph, the FBI made 15,229 NSL requests in 2012, excluding requests that were for subscriber information only.  These NSL requests were looking for information on 6,223 different United States persons.  By way of comparison, during the same time period, the federal government made "only" 1856 applications to the Foreign Intelligence Surveillance Court (FISC) for authority to conduct electronic surveillance and physical searches for foreign intelligence purposes, none of which were turned down.

More specifically, thanks to recent developments at Google, they have recently released a range of the number of NSLs that they have received in each year between 2009 and 2012 as shown here:

Just in case you thought it was safe to go back in the water, there's another "shark" waiting for you!  My recommendation; research and select a reputable Virtual Private Network.  While it may not protect you from every prying government organization, at the very least you'll provide them with a bit of a challenge when they are trying to stick their noses into your private business.  The least that they can do is work hard to breach our illusion of privacy.

Losing Your Privacy One Step at a Time

Updated July 7th, 2013

The passing of House Resolution 5949 went pretty much unnoticed by just about everyone but, in light of the Snowden revelations, it becomes even more important to all of us.  The Bill, the FISA Amendments Act Reauthorization Act of 2012 was sponsored by Texas Representative Lamar Smith (R) and looks like this:

While it sounds innocuous, the original FISA or Foreign Intelligence Surveillance Act was originally enacted in 1978 in response to the widespread abuse of government wiretaps.  Interestingly, the original Act was introduced by one Senator Edward Kennedy.  The law governs the surveillance of non-Americans living outside of the United States for the purpose of collecting intelligence related to foreign powers.  The original FISA was seen to be too restrictive in the government's eyes after the attacks of September 11th, 2001 and, under the Patriot Act, FISA's powers were expanded to cover terrorism suspects and agents of foreign countries.  In 2008, Congress overhauled FISA and expanded the government's powers to listen in to American communications.  In addition, the updated version offered legal immunity for any telecommunications company that co-operated with the National Security Agency wiretapping program.

In a rather Orwellian twist, government requests for surveillance are adjudicated by a special eleven member (since 2001) secret court called the Foreign Intelligence Surveillance Court (FISC) whose current members are:

It was this court that the Bush Administration bypassed when they used the Patriot Act to direct the NSA to spy on all telecommunications companies and gather intelligence from phone conversations, email, web browsers etcetera.

What should be surprising but isn't in light of HR 5949 is the fact that Senator Barack Obama voted in favour of granting immunity to the aforementioned telecommunications companies in 2008.

Now, let's get back to HR 5949.  It's amazing how this bill was passed post-haste; it was introduced to the House on June 15th, 2012, passed the House on September 12th 2012, passed the Senate on December 28th, 2012 and was signed by President Obama on December 30th, 2012.  It passed the House by a vote of 301 for and 118 against and the Senate by a vote of 73 for and 23 against.  In the House, just seven Republicans voted against HR 5949 and Democrats were split 74 voting for and 111 voting against it.

See, Washington really can get things done when it gets right down to it!

In a recent ruling, the Supreme Court refused to rule on a case, Clapper v. Amnesty International, noting that the lawyers and journalists bringing the suit did not demonstrate that they had suffered injury since they are merely speculating that their communications with foreign contacts will be acquired as stated here, with Justice Alito noting that Section 1881 is the section of FISA that outlines procedures for targeting individuals for surveillance:

"Respondents assert that they have suffered injury in fact that is fairly traceable to §1881a because there is an objectively reasonable likelihood that their communications with their foreign contacts will be intercepted under §1881a at some point. This argument fails. Initially, the Second Circuit’s “objectively reasonable likelihood” standard is inconsistent with this Court’s “threatened injury” requirement. Respondents’ standing theory also rests on a speculative chain of possibilities that does not establish that their potential injury is certainly impending or is fairly traceable to §1881a. First, it is highly speculative whether the Government will imminently target communications to which respondents are parties. Since respondents, as U. S. persons, cannot be targeted under §1881a, their theory necessarily rests on their assertion that their foreign contacts will be targeted. Yet they have no actual knowledge of the Government’s §1881a targeting practices. Second, even if respondents could demonstrate that the targeting of their foreign contacts is imminent, they can only speculate as to whether the Government will seek to use §1881a-authorized surveillance instead of one of the Government’s numerous other surveillance methods, which are not challenged here. Third, even if respondents could show that the Government will seek FISC authorization to target respondents’ foreign contacts under §1881a, they can only speculate as to whether the FISC will authorize the surveillance. This Court is reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment. See, e.g., Whitmore, supra, at 159–160. Fourth, even if the Government were to obtain the FISC’s approval to target respondents’ foreign contacts under §1881a, it is unclear whether the Government would succeed in acquiring those contacts’ communications. And fifth, even if the Government were to target respondents’ foreign contacts, respondents can only speculate as to whether their own communications with those contacts would be incidentally acquired. "

Note the use of the words speculate and speculative.  Basically, since the plaintiffs can't know if they and their foreign contacts are being secretly surveilled and under what authority the government is going to secretly spy on them, they have nothing to complain about.  Since they can't prove it because it's secret, the legal action is groundless, the secrecy of the whole thing making for a perfect Catch-22.

And now, thanks to quick action by Congress and the Senate, Washington has extended FISA's powers for another five years!