The Gaping Hole In Obama’s FBI Surveillance Reform

James Comey, director of the Federal Bureau of Investigation, speaks during an event for National Slavery and Human Trafficking Prevention Month at the Justice Department in Washington, Jan. 29, 2015.   ( JIM WATSON/AFP/Getty Images)Huffington Post – by Matt Sledge

The federal government this week announced a reform to an investigative tool that gives the FBI sweeping surveillance power. But a target of that surveillance said the change appears to leave investigators with vast power to snoop — in secret.

The FBI uses national security letters to force business owners to hand over records on their customers, as long as the records are related to a national security investigation. No court approval is needed, and the FBI can impose a gag order on recipients, forbidding them from revealing even the existence of a letter.  

The gag orders can last a lifetime. But on Tuesday, as part of surveillance reforms made in the wake of National Security Agency leaker Edward Snowden’s revelations, the Office of the Director of National Intelligence announced that national security letter gag orders will now expire after three years, or when an investigation ends.

The new rules contain a gaping exception, however: FBI agents can essentially write themselves a permission slip to keep a national security letter secret past the deadline, as long as they receive approval from supervisors.

“This exception is essentially full discretion to FBI officials,” said Andrew Crocker, a legal fellow at the Electronic Frontier Foundation. “It is an exception that doesn’t have a lot of standards associated with it. This is kind of the problem with the (national security letter) statute to begin with.”

For years, Crocker and other lawyers at the privacy watchdog have been fighting to force the federal government to reveal in court the name of a phone companychallenging one gag order. A federal district judge handed the foundation a major victory in 2013, ruling that the gag order violates the First Amendment’s right to free speech. The case — which stems from a 2011 government order — has remained on appeal since then.

The FBI has wielded national security letters for decades, but the authority to do so was vastly expanded by the post-9/11 Patriot Act. Department of Justice inspector general reports released since then have documented widespread abuse of the letters. But the bureau keeps using them, to the tune of 21,000 letters in the 2012 fiscal year.

Because the recipients of all those letters are often barred by the gag orders from speaking out, their voices in the debate has been silenced. That changed a little in 2010, when Nicholas Merrill was finally able to reveal as the result of a long court battle that his small Internet service provider had received a letter — in 2004.

Merrill was back in court in December, trying to force the government to allow him to reveal what it had sought (he never supplied them with any of data after the government backed down on its original request, but that portion of the gag order still stands).

If the reforms announced this week have affected his case, Merrill wrote to HuffPost in an email, “nobody has told me.” He said the government has shown no sign of surrender in trying to block him from speaking out.

The White House last year rejected a review panel’s proposal to make national security letters subject to court order. Administration counterterrorism adviser Lisa Monaco heralded the minor changes to some national security letters’ gag orders in a statement on Tuesday.

Merrill was unimpressed.

“The issue at hand is that the government doesn’t want me to discuss what was in the third page of the (national security letter) I received, namely, the types of data they demanded (and I did not hand over),” Merrill wrote. “The problem with not being able to discuss that openly, is that is the heart of the public policy issue — what kinds of information can the government get on an innocent citizen without a warrant, or even any suspicion of wrongdoing.”

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