Every year the Federal Bureau of Investigation issues tens of thousands of “National Security Letters.” These demands for information from communications service providers are a key component in the U.S. government’s domestic surveillance apparatus, yet the details of how they are used were long kept largely secret from the public.
This has begun to change in the past year, as the FBI has lifted some of the gag orders that it typically issues along with the letters. The bureau must now review these nondisclosure orders, as mandated by the 2015 “USA Freedom Act,” which brought some limited reforms to intelligence agencies but also renewed much of George W. Bush’s “USA Patriot Act,” passed in the wake of the September 11, 2001 terrorist attacks.
In the wake of this change, last summer Yahoo became the first company to be able to disclose that it had received NSLs, and to publish them. In December, Google published eight National Security Letters it had received. And last Friday, Twitter became the latest tech company to acknowledge that it has received the previously-secret government orders, and to publish them.
Following these latest disclosures, critics are saying the FBI has likely overstepped its legal authority.
The letters sent to Twitter “specifically request a type of data known as electronic communication transaction records, which can include some email header data and browsing history, among other information,” Reuters reports. “In doing so, the orders bolster the belief among privacy advocates that the FBI has routinely used NSLs to seek internet records beyond the limitations set down in a 2008 Justice Department legal memo, which concluded such orders should be constrained to phone billing records.”
Andrew Crocker, a staff attorney at the Electronic Frontier Foundation, told the news agency that the newly disclosed NSLs sent to Twitter add to a growing body of evidence that the FBI has misused the surveillance orders.
“This is an ongoing practice and it is significantly beyond the scope of what is intended,” Crocker said, echoing comments he made last month that Google’s release of eight of the NSLs it has received was “a small amount of progress.”
“It’s only eight out of tens of thousands, really hundreds of thousands over the course of the years that FBI has been using these in this way,” Crocker said at the time. He added that “there are really so few that have been published that any attention on NSLs is progress because they really are this sort of secret, little-understood tool.”
Mike Masnick of Techdirt notes that “not necessarily revealing an ongoing investigation into a crime,” is understandable, “but the gag orders go much further, barring companies from even admitting how many NSLs they receive. It’s hard to see how revealing that kind of information — in any way — compromises law enforcement or intelligence investigations. The only thing it serves to do is to hide from the public the scale of the surveillance.”
Up until the last few months, the FBI and the broader national security establishment had done a fairly good job of keeping the public in the dark about its National Security Letters. The more we find out, though, the more it seems that the National Security Letter is yet another weapon in the arsenal of America’s spy agencies that might easily be misused in the future, as it frequently has been in the past.