Senators Question FBI About Unlawful Internet Archive Record Demand

A bipartisan group of senators sent a letter (pdf) to FBI Director Robert S. Mueller III this week demanding answers about an illegitimate National Security Letter (NSL) served on the Internet Archive last fall. The Archive joined with EFF and the ACLU to fend off the NSL, which sought information about an Archive patron that the FBI had no authority to gather. After extensive negotiations, the FBI agreed last month to withdraw the letter and lift an accompanying gag order that had been imposed on the Archive, EFF, and ACLU.

The Electronic Communications Privacy Act (ECPA) allows the FBI to issue NSLs only to providers of an electronic communication service, which is "any service which provides to users thereof the ability to send or receive wire or electronic communications." However, the Archive was not acting in this role in connection with the information sought by the FBI. Furthermore, the Archive is a digital library protected from NSLs by a 2006 amendment to ECPA that limited the FBI's power to demand records from libraries.

Specifically, the senators want to know:

• Whether the FBI thinks the Internet Archive is a provider of an electronic communication service for purposes of the information sought through the NSL. If so, the senators want the FBI to explain why it believes the Archive is such a provider.
• Whether the FBI has issued any guidance to help agents figure out what constitutes a provider of an electronic communication service, and if so, what that guidance is. If there is no guidance, the senators want to know what the FBI thinks the scope of that term is.
• Whether the issuance of the NSL to the Internet Archive has been reported to the FBI General Counsel or Intelligence Oversight Board as a possible misuse of intelligence authority.

Ryan Singel of Wired News writes about the senators' letter and asks his own set of questions here. For more information about the Archive's battle against the FBI, take a look at EFF's Internet Archive v. Mukasey page.

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PATRIOT Act Apologist Site Didn't Get the Memo

Last week, the Department of Justice Inspector General's office released a damning report documenting the FBI abusing its powers under the PATRIOT Act and violating the law to collect Americans' telephone, Internet, financial, credit, and other personal records about Americans without judicial approval.

It appears that not everyone at the DOJ got the memo. The DOJ's Life and Liberty website, a site dedicated to defending the honor of the PATRIOT Act during the re-authorization process last spring, still reads as if nothing has changed. Particularly in the light of the newly revealed truth, many of the quotes now seem (at best) naive.

Under the headline of "Examining the Facts", the DOJ asserts that PATRIOT has "four-year track record with no verified civil liberties abuses." The site quotes an op-ed by former House Judiciary Committee Chairman James Sensenbrenner:

Zero. That's the number of substantiated USA PATRIOT Act civil liberties violations. Extensive congressional oversight found no violations. Six reports by the Justice Department's independent Inspector General, who is required to solicit and investigate any allegations of abuse, found no violations.

Wow, that sure sounds good. Unfortunately, the new report reveals that is is simply not true: the inspector general identifies dozens of instances in which extra-judicial demands for personal information -- known as National Security Letters -- may have violated laws and agency regulations.

In the Archive section, the site includes quotes from an op-ed by Senator Pat Roberts responding to critics like ourselves:

I regret to say it, but the rhetoric of those opposed to permanently authorizing the act has no substance and borders on paranoia. Opponents have criticized the act for years but can cite only hypothetical abuses. Facts are stubborn things. The actual record is quite clear - there have been no substantiated allegations of abuse of Patriot Act authorities, period.

Critics could only point to hypothetical abuses because the fox was guarding the hen house. Senator Roberts also opined that:

Through aggressive congressional oversight, we know the FBI uses Patriot Act authorities within the law.

It's now clearer than ever that the oversight was not aggressive enough, with the report documenting that the FBI decieved Congress about its use of the letters. The report is likely only the tip of the iceberg. Immediate and thorough oversight hearings are necessary to uncover the truth and hold the Administration accountable.

Tell Congress to defend your privacy now.

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EFF Calls For Aggressive Congressional Hearings on National Security Letter Misuse

EFF is calling for Congress to hold aggressive hearings on the FBI's domestic intelligence authority after the release of a Justice Department report [PDF] showing the Bureau abusing its power to collect telephone, Internet, financial, credit, and other personal records about Americans without judicial approval.

Sen. Patrick J. Leahy, D-Vermont, has said the Senate Judiciary Committee will hold hearings into the report's findings. But the widespread abuse detailed in the report requires more than just a cursory examination.

"The Bureau's misuse of its intelligence authority is an ongoing critical problem," said EFF Staff Attorney Marcia Hofmann. "Congress must use its investigative power to find out what's really going on at the FBI -- and then rein in the Bureau's investigative authority to where is was before the USA PATRIOT Act."

In the report, the Justice Department's inspector general identifies four dozen instances in which demands for personal information -- known as National Security Letters -- may have violated laws and agency regulations. The report also found that the Bureau lied to Congress about its use of the letters.

The FBI has had limited authority to issue National Security Letters for many years. However, a controversial provision of the PATRIOT Act greatly expanded the Bureau's ability to use them to gather information about anyone, as long as the agency believes the information could be relevant to a terrorism or espionage investigation.

Today's report follows the inspector general's findings last year that the Bureau had disclosed more than 100 instances of possible intelligence misconduct to the Intelligence Oversight Board in the preceding two years, a number of which were "significant."

In 2005, EFF argued in a friend of the court brief that the FBI's "unfettered authority" to issue National Security Letters "is ripe for abuse." The danger of such abuse has now been documented.

"This is not simply about errors in 'oversight,'" said EFF Senior Staff Attorney Lee Tien. "This is about disregard for the law. For example, FBI terrorism investigators ignored their own lawyers' advice to stop using so-called 'exigent' letters for about two years."

For more information, read the full report from the Justice Department, as well as this brief description of National Security Letters .

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Federal Judge Refuses to Dismiss PATRIOT Act Case (Finally!)

After a wait of nearly three years, Judge Hood in the Eastern District of Michigan finally ruled yesterday on the government's request that the court dismiss a lawsuit brought by a group of Muslim and Arab-American associations challenging the constitutionality of PATRIOT Act Section 215. As you may recall, Section 215 authorizes the government to obtain a secret order from the FISA court demanding business records or any other information that investigators think is relevant to a terrorism investigation. The court's decision? Motion denied!

[Read the entire post]

PATRIOT Renewal Rubber Stamped, NSA Spying May Be Next

Despite the best efforts of EFF, other civil liberties organizations, and their supporters, Americans' privacy rights took some serious body-blows from Congress this week. For more on the PATRIOT Act: The USA PATRIOT Act was renewed without meaningful reform, and key Congressmen backed away from a full investigation of the NSA's domestic spying program, instead making a deal with the White House to legalize it.

Whether because of election year fears or White House pressures, Republican Senators who had been holding out for significant new checks on the PATRIOT Act dropped the fight when offered a few sham reforms. The renewal bill was then quickly approved by the Senate and, this week, approved by the House and signed by the President.

Why are the "compromise" bill's three reforms worthless? Let's take each in turn.

The bill provides a procedure for recipients of super-secret National Security Letters (NSLs) to challenge the never-ending gag orders that accompany these FBI-issued subpoenas. But the ACLU (with help from EFF) already demonstrated that these gag orders could be successfully challenged in court without a change to the law. This new "reform" actually makes things worse: under the new law, these gag orders can't be challenged at all within a year of being issued, and if the government simply tells the court that lifting the gag order will hurt national security, the government wins. We think this procedure is just as unconstitutional as the original law.

The bill didn't include a requirement that NSL recipients seeking legal advice disclose their lawyer's name to the FBI. But this "reform" simply removed something bad from one of the renewal bill's earlier versions; it didn't change the original PATRIOT Act at all.

Finally, the bill clarified that NSLs can't be served on libraries that don't provide electronic communication services. But NSLs already can't be served on libraries lacking those services.

Unfortunately, it gets worse. Senate Republicans this week stated that they had reached a deal with the White House to legalize the NSA's domestic spying program. The agreement allows government investigators to conduct warrantless wiretaps for up to 45 days before having to go to a court, even in non-emergency situations. Currently, the law only allows such surveillance without a warrant for 72 hours in emergencies and for 15 days by the Executive when war is declared. Because of this deal, an in-depth Congressional investigation of the NSA program -- what it actually involves and whether it broke the law -- has been deflected for now.

Nevertheless, this week's events shouldn't be taken as final defeats. Members of Congress who were dissatisfied with the PATRIOT bill -- Democrats and Republicans alike -- are already proposing new non-sham reforms, while the plan to legalize the NSA Program still has opponents on both sides of the aisle. EFF believes that the spying program did in fact break the law and violate the Constitution, as we have alleged in our lawsuit against AT&T for helping the NSA with this massive fishing expedition into Americans' private communications. As always, EFF will stay on the front lines and fight hard to ensure that your civil liberties are protected.

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Final PATRIOT Showdown Deferred As NSA Hearings Loom

Late last year, the tide in Congress began to turn against the PATRIOT Act's sunsetting provisions, as legislators refused to grant a long-term extension. Despite President Bush's call for extension in Tuesday's State of Union, Congress once again put off taking any final action today, only approving a second five-week extension.

While any extension is unfortunate, this delay provides an important opportunity for PATRIOT opponents. In the coming weeks, the dangers of government surveillance will come under great scrutiny. Next week, the Senate Judiciary Committee will start public hearings on the government's illegal domestic spying program. As suggested by news reports and EFF's lawsuit against AT&T for its role in the surveillance, the program is broader than the government has admitted.

Keep the momentum against PATRIOT going by letting your representatives know that reform should be put off until the Administration provides all details on the program.

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Illegal NSA Wiretapping Program Involved Data-Mining

News reports over the holidays revealed that the US National Security Agency (NSA)'s presidentially-approved domestic spying program is even broader than the White House acknowledged.

First it was revealed that the Administration has been wiretapping the international phone and email communications of people inside the US without getting search warrants.

Now we learn that, according to the New York Times and the Los Angeles Times, the NSA has gained access to major telecommunications switches inside the US, giving it essentially unchecked access not only to international communications but to purely domestic emails and phone calls as well. Those newspapers, and a new book by New York Times reporter James Risen, have further revealed that the NSA has been using that access--as well as access to telecommunications companies' databases--to data-mine Internet logs and phone logs for suspicious patterns, presumably to find new targets for the wiretapping program.

The continuing revelations about the NSA's illegal surveillance activities make a mockery of the current debate over USA PATRIOT reform. The Administration has been vigorously arguing against adding any new checks and balances to its foreign intelligence capabilities in the new PATRIOT renewal bill, yet the White House has now admitted that it authorized the NSA to bypass the few checks and balances remaining after PATRIOT. What good is legislative reform if the Administration considers itself above the law?

EFF is actively investigating all options for going to court and challenging the NSA program. However, the exact scope of the "President's Program," as it has been called, is still very unclear, and these new revelations show just how badly a Congressional inquiry is needed to get to the bottom of things. Senator Arlen Specter (R-PA) has vowed to hold hearings in the Senate Judiciary Committee, but neither the House nor Senate Intelligence Committees has announced similar plans. What is needed here is a full-court press from Congress -- it appears that the facts we've gotten so far are potentially the tip of the iceberg.

Specter's hearings start this month. The debate over PATRIOT will resume, too, as the "sunsetting" provisions of the Act are now set to expire on February 3rd. Particularly in light of the NSA scandal, Congress should not even consider renewing the spying powers in the PATRIOT Act until the public hears the full story of the President's Program.

Visit our Action Center and tell your Senators and Representative to support hearings on the NSA program and oppose PATRIOT renewal.

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Congress (Finally) Agrees on PATRIOT Extension Deal

The suspense is over. After a weeks-long game of brinksmanship, the Senate and House have agreed to extend the sunsetting provisions of PATRIOT--which were scheduled to expire on December 31st--until February 3rd. The President plans on signing the bill.

We'd prefer that these PATRIOT provisions not be extended at all, but this is still a major victory for those who want Congress to add new checks and balances against abuse of the broad PATRIOT surveillance powers. The Administration and the DOJ, despite their best efforts, could not garner enough support for the sham "compromise" bill that would have renewed everything with mostly cosmetic reforms. As Senator Feingold said in a statement this evening, right before the Senate vote: "No one should make the mistake of thinking that a shorter extension will make it possible to jam the unacceptable conference report through the Congress. That bill is dead and cannot be revived."

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House Votes to Extend PATRIOT one month (updated: five weeks)

On the heels of the Senate's vote for a six-month PATRIOT extension, here's the latest from the Associated Press:

The House passed a one-month extension of the Patriot Act on Thursday and sent it to the Senate for final action as Congress scrambled to prevent expiration of anti-terror law enforcement provisions on Dec. 31.

Approval came on a voice vote in a nearly empty chamber, after Rep. James Sensenbrenner, R-Wis., chairman of the House Judiciary Committee, refused to agree to a six-month extension the Senate cleared several hours earlier....

It was not clear when the Senate would act on the one-month bill, but approval was possible by evening.

We'll let you know what the Senate ends up doing.

UPDATE: Turns out it was a five-week extension. Still waiting on Senate action.

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Six More Months to Fight PATRIOT?

CNN is reporting breaking news that the Senate has ended its impasse over USA PATRIOT Act renewal. As we told you previously, pro-PATRIOT lawmakers have been unable to end a filibuster by senators demanding that new protections for civil liberties be added to the renewal bill. With the "sunsetting" provisions of PATRIOT set to expire on December 31st and the holiday recess fast approaching, the Administration and its supporters in the Senate have now chosen to cut a deal: the sunsetting provisions will be extended for another six months, allowing more time for debate on what reforms must be added to the PATRIOT Act before complete renewal. It's not yet clear how the House of Representatives will respond, but we think it's likely to accept the deal tomorrow (knock on wood).

EFF opposes PATRIOT renewal in any form, but this is still an encouraging development: it provides us an extra six months to push for new checks and balances and limit the damage done by the original PATRIOT. Given how the frightening new revelations of this administration's abuse of its surveillance powers are piling up, the momentum for change can only build in the new year.

UPDATE: The administration has admitted defeat. President Bush apparently won't veto the six-month renewal (or try using a veto threat to sway the House), even though in a Wednesday morning statement he accused the senators proposing the short extension of "inexcusable" obstructionism. The L.A. Times reports that in a written statement late Wednesday, Bush said that he appreciated the Senate's work "to keep the existing Patriot Act in law" but that "the work of Congress on the Patriot Act is not finished.... The act will expire next summer, but the terrorist threat to America will not expire on that schedule." Clearly, there's still unfinished work for us PATRIOT opponents as well--and we're looking forward to it.

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