Covert FBI Power to Obtain Phone Data Faces Rare Test

The Wall Street Journal:

Early last year, the Federal Bureau of Investigation sent a secret letter to a phone company demanding that it turn over customer records for an investigation. The phone company then did something almost unheard of: It fought the letter in court.

The U.S. Department of Justice fired back with a serious accusation. It filed a civil complaint claiming that the company, by not handing over its files, was interfering "with the United States' sovereign interests" in national security.

The legal clash represents a rare and significant test of an investigative tool strengthened by the USA Patriot Act, the counterterrorism law enacted after the attacks of Sept. 11, 2001.

The case is shrouded in secrecy. The person at the company who received the government's request—known as a "national security letter," or NSL—is legally barred from acknowledging the case, or even the letter's existence, to almost anyone but company lawyers.

"This is the most important national-security-letter case" in years, said Stephen Vladeck, a professor and expert on terrorism law at the American University Washington College of Law. "It raises a question Congress has been trying to answer: How do you protect the First Amendment rights of an NSL recipient at the same time as you protect the government's interest in secrecy?"

The confidentiality requirements make it impossible to definitively identify the company fighting the case. Its name and other identifying details have been redacted in court documents obtained by The Wall Street Journal.

The phone company's lawyer declined to name his client or respond to questions about its identity.

There are thousands of telecom companies in the U.S. However, the court papers offer clues that can be used to narrow down the list. The Journal cross-referenced the court papers against corporate websites and Federal Communications Commission records of telecom firms, and identified five firms that appeared to be possible matches with the company described in the case.

Four of the five companies denied any involvement in the case and declined to be interviewed about national security letters. At the fifth company, a top executive declined to confirm or deny, either on or off the record, whether his firm had received an NSL or is involved in the case.

That company, Working Assets Inc., runs a San Francisco-based telecom subsidiary called Credo, and uses some of its revenue to support liberal causes. The chief executive of Credo, Michael Kieschnick, offered his firm's view, in general terms, of these types of government requests. "There is a tension between privacy and the legitimate security needs of the country," he said. "We think it is best to resolve this through grand jury or judicial oversight."

Unlike search warrants, NSLs don't require a judge's oversight.

National security letters, which date back to the 1980s, have become more common since the passage of the Patriot Act, which expanded the government's ability to use them to collect information about people. As long as the head of an FBI field office certifies that the records would be relevant to a counterterrorism investigation, the bureau can send an NSL request without the backing of a judge or grand jury.

Full article can be found here.

National Security Agency Executive Indicted

From Cato@Liberty

On Thursday, the government indicted former National Security Agency executive Thomas Drake for obstructing justice and mishandling classified documents—though the underlying crime, for which Drake was not actually charged, was leaking embarrassing information to national security reporter Siobhan Gorman (then of the Baltimore Sun, now at The Wall Street Journal). As Glenn Greenwald observes, the decision to move forward with a rare leak prosecution in Drake’s case stands in rather sharp contrast to the decision to look the other way when it comes to other sorts of wrongdoing in the world of intelligence.
For years, the NSA managed a sweeping program of warrantless wiretaps and large-scale data mining, which a federal judge recently confirmed was in gross violation of the Foreign Intelligence Surveillance Act. The telecoms who participated in the scheme were, equally clearly, violating the Electronic Communications Privacy Act. The FBI separately and systematically flouted the same law by obtaining call records for thousands of phone numbers without any legitimate legal process. And, of course, there’s the little matter of torture. For these crimes, the administration has pronounced a verdict of “boys will be boys,” on the grounds that it’s better to gaze boldly into our shining future than get bogged down in recriminations over all that old stuff.

Judge Tosses NSA Spy Case-

The Electronic Frontier Foundation intends on appealing a ruling issued earlier this week in San Francisco by U.S. District Judge Vaughn Walker. The Judge dismissed Jewel v. NSA, a case from the Electronic Frontier Foundation (EFF) on behalf of AT&T customers challenging the National Security Agency's mass surveillance of millions of ordinary Americans' phone calls and emails. The lawsuits accuse the government of teaming with the nation’s telcom companies to funnel Americans’ electronic communications to the National Security Agency without warrants.

U.S. District Judge Vaughn Walker’s decision was a major blow to the two suits testing warrantless eavesdropping and executive branch powers implemented following the 2001 terror attacks. The San Francisco judge said the courts are not available to the public to mount that challenge.

“A citizen may not gain standing by claiming a right to have the government follow the law,” (.pdf) Walker ruled late Thursday.

Read More here

National Security Agency

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