NSLs Need ‘Relevancy’ Standard, Senate Judiciary Told
There’s no doubt of the need to govern FBI use of National Security Letters by strict minimization procedures and retention limits, perhaps imposed by Congress, witnesses and lawmakers said in a Senate Judiciary Committee hearing Wednesday. But consensus broke down over whether the standard for issuing NSLs should be stricter and whether they should be replaced by a broader “national security subpoena.” Lawmakers credited the FBI with strides toward better use of NSLs, though Ranking Member Arlen Specter, R-Pa., also spoke what may be his harshest words yet against the Bush Administration. The hearing was less tense than one last week by the House Judiciary Constitution Subcommittee on NSL abuse (CD April 16 p5).
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“I believe that the [FBI] director and staff are sincere in their efforts” to improve compliance with NSL laws, but the bureau’s NSL review authority has to go, said Chairman Patrick Leahy, D-Vt. NSLs have been issued in “run-of-the-mill cases” not involving terrorism, resulting in fines or short jail terms, he said. “Leaving this to the FBI alone to fix is not the answer,” said Sen. Russ Feingold, D-Wis., noting that last year a federal court struck down an NSL statute on First Amendment grounds. Sen. Ben Cardin, D-Md., said he worries that NSL abuses could resume when hearings cease: “What happens when we turn off the spotlight?”
Specter minced no words in blasting administration handling of NSLs and demands for immunity for telcos involved in warrantless surveillance. “Thank God for the courts, because it has been more than frustrating… not to have the semblance of effective oversight” by the Judiciary Committee, he said. “I would say that we ought to do a lot more… but I don’t know what we would do.” In a wide-ranging discourse, Specter noted that he endorsed a Patriot Act reauthorization that broadened the FBI’s NSL powers, but said he’s troubled by President Bush’s signing statement limiting his obligation to comply with safeguards in the law. As an example of the FBI’s flawed behavior, he cited its pursuit of records under an NSL after twice being denied in requests to the Foreign Intelligence Surveillance Court: “That sounds wrong to me.”
‘Relevancy’ vs. ‘Specific and Articulable Facts’
Lawmakers should decide what limits to set on collection of any “metadata,” not merely phone or e-mail records for NSLs, said James Baker. A national security counsel for Verizon and former intelligence policy counsel for DoJ, Baker said agents are confused because they have eight ways to get records, all with different approval levels and oversight mechanisms. It would be better to replace NSLs with a “national security subpoena” requiring DoJ assent, he said. Baker quibbled with Specter over whether the cited incident of the FBI bypassing FISA through an NSL was as “blatantly wrong” as Specter said. “Technically speaking, under the law, they were authorized” to try an NSL, whether or not it was a good idea, Baker said.
FISA minimization procedures, often offered as a template for NSL reform, are “actually quite permissive,” said Gregory Nojeim, director of the Center for Democracy and Technology’s Project on Freedom, Security and Technology. “Not all metadata is created alike,” he said in reference to Baker’s proposal, noting that his full tax return given to a bank for a loan application could be considered metadata. A national security subpoena actually could go beyond the “limited entities” entitled to get an NSL, with the same gag- order restrictions, he said.
Congress should devise NSL safeguards “proportionate and carefully tailored to the actual harms” of abuse, said Michael Woods, former FBI national security law unit chief. The bureau deals with a “constantly-evolving digital environment” that requires some flexibility in getting records, he said.
The “specific and articulable facts” standard in the NSL Reform Act (S-2088), sponsored by Feingold with a House companion (HR-3189), is “inappropriate” for the “inchoate threat situations” that agents have faced since the Sept. 11 attacks, Woods said. The law uses the “relevancy” standard common to criminal prosecutions. Baker said external oversight of NSLs is fine but requiring FBI agents to, for example, seek court approval for NSLs -- when pressure is high to prevent attacks -- simply would discourage their use. Agents “will find some other way to get what they need,” perhaps getting friendly U.S. attorneys to file grand-jury subpoenas, Baker said.
FBI guidance already requires something close to the “articulable” standard, so it wouldn’t slow down agents, Nojeim said. There’s no practical limit on those who could be ensnared in an investigation under relevancy, he said. Agents are too busy to say “'Look at this juicy bit of information, let’s set this aside for later'” as Nojeim apparently fears, said Sen. Jon Kyl, R-Ariz.
Sen. Jeff Sessions, R-Ala., emerged as the biggest critic of using the articulable standard. If the Drug Enforcement Agency can issue a subpoena analogous to an NSL for phone records, based on relevancy to a drug case, the FBI should use such authority to chase terrorists, he said. Woods said 300 federal agencies have the administrative subpoena authority used for NSLs. Kyl said Congress could “build on” a relevancy standard: “We need to be a bit more liberal on the front end” and create safeguards on use of collected data. Errors in the NSL process usually have been “nuts-and-bolts” matters, Woods said, not a “malevolent presence in the government” subverting civil liberties.