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Wed Dec 31, 2014, 11:20 AM

FBI Has Neat Way To Get Around FISA Court Rejection: Just Issue Nat'l Security Letter INSTEAD

When The FISA Court Rejects A Surveillance Request, The FBI Just Issues A National Security Letter Instead
from the oversight! dept

We've talked quite a bit about National Security Letters (NSLs) and how the FBI/DOJ regularly abused them to get just about any information the government wanted with no oversight. As a form of an administrative subpoena -- with a built in gag-order -- NSLs are a great tool for the government to abuse the 4th Amendment. Recipients can't talk about them, and no court has to review/approve them. Yet they certainly look scary to most recipients who don't dare fight an NSL. That's part of the reason why at least one court found them unconstitutional.

At the same time, we've also been talking plenty about Section 215 of the PATRIOT Act, which allows the DOJ/FBI (often working for the NSA) to go to the FISA Court and get rubberstamped court orders demanding certain "business records." As Ed Snowden revealed, these records requests can be as broad as basically "all details on all calls." But, since the FISA Court reviewed it, people insist it's legal. And, of course, the FISA Court has the reputation as a rubberstamp for a reason -- it almost never turns down a request.

However, in the rare instances where it does, apparently, the DOJ doesn't really care, knowing that it can just issue an NSL instead and get the same information. At least that appears to be what the DOJ quietly admitted to doing in a now declassified Inspector General's report from 2008. EFF lawyer Nate Cardozo was going through and spotted this troubling bit:

If you can't read it, it says:

We considered the Section 215 request for [REDACTED] discussed earlier in this report at pages 33 to 34 to be a noteworthy item. In this case, the FISA Court had twice declined to approve a Section 215 application based on First Amendment Concerns. However, the FBI subsequently issued NSLs for information [REDACTED] even though the statute authorizing the NSLs contained the same First Amendment restriction as Section 215 and the ECs authorizing the NSLs relied on the same facts contained in the Section 215 applicants...

In other words, the FBI had a neat way to get around a rare FISA Court rejection: just issue an NSL and ignore the First Amendment concerns.


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Reply FBI Has Neat Way To Get Around FISA Court Rejection: Just Issue Nat'l Security Letter INSTEAD (Original post)
kpete Dec 2014 OP
Octafish Dec 2014 #1

Response to kpete (Original post)

Wed Dec 31, 2014, 11:40 AM

1. Except when Coleen Rowley wanted to search Zacarias Moussaoui's computer

It was one of two times I remember the FBI respecting a suspect's civil rights. The other time concerns the JFK assassination, when Mr. Hoover took the word of right-wing racists over that of the FBI's informants and tape recorders.

Thank you for the heads-up, kpete. As long as it's all legal-like, I guess it's close enough for the Law.

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