Internet entrepreneur Nicholas Merrill received an FBI notice -- called… (Carolyn Cole, Los Angeles…)
Reporting from Washington — Internet entrepreneur Nicholas Merrill was working in his Manhattan office when an FBI agent in a trench coat arrived with an envelope.
It was fall 2004, and federal investigators were using new legal authority they had acquired after Sept. 11, 2001. Merrill ran a small Internet service provider with clients including IKEA, Mitsubishi and freelance journalists.
The agent handed Merrill a document called a National Security Letter, which demanded that he turn over detailed records on one of his customers. The letter wasn't signed by a judge or prosecutor. It instructed him to tell no one.
"Not even my lawyer? Not even my business partners?" Merrill asked.
The agent shrugged and left.
Merrill had gotten a rare glimpse of the secret domestic intelligence gathering that is one of the most significant legacies of Sept. 11. U.S. law enforcement and intelligence agencies now collect, store and analyze vast quantities of digital data produced by law-abiding Americans. The data mining receives limited congressional oversight, rare judicial review and almost no public scrutiny.
Thanks to new laws and technologies, authorities track and eavesdrop on Americans as they never could before, hauling in billions of bank records, travel receipts and other information. In several cases, they have wiretapped conversations between lawyers and defendants, challenging the legal principle that attorney-client communication is inviolate.
Advocates say the expanded surveillance has helped eliminate vulnerabilities identified after the Sept. 11 attacks. Some critics, unconvinced, say the snooping undermines privacy and civil liberties and leads inevitably to abuse. They argue that the new systems have weakened security by burying investigators in irrelevant information.
"We are caught in the middle of a perfect storm in which every thought we communicate, every step we take, every transaction we enter into is captured in digital data and is subject to government collection," said Fred H. Cate, a professor at the Indiana University Maurer School of Law who has written extensively on privacy and security.
A robust debate on the intelligence gathering has been impossible, for the simple reason that most of the activity is officially secret. In lawsuits alleging improper eavesdropping, the Justice Department has invoked state secrecy to prevent disclosure of classified information and systems.
In May, two members of the Senate Intelligence Committee said that Americans would be disturbed if they knew about some of the government's data-gathering procedures. But Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) said they were prohibited from revealing the facts.
"When the American people find out how their government has secretly interpreted" surveillance law, "they will be stunned and they will be angry," Wyden said.
The National Security Agency, which eavesdrops on foreign targets, once had to get a court-approved warrant to monitor a U.S. citizen's communications over wires that traverse the United States. Now the agency is free to vacuum up communications by Americans and foreigners alike, as long as the target of the surveillance is a foreigner.
Exactly what records are kept and how they are used is not well understood even by lawmakers who oversee the intelligence agencies, said Rep. Rush D. Holt (D-N.J.), who chaired the now-expired Select Intelligence Oversight Panel.
"The NSA finds it pretty easy to snow members of Congress by confusing them," Holt said in an interview.
Officials from the FBI and NSA say they follow strict rules to avoid abuses. But in 2007, the Justice Department's inspector general found that the FBI had engaged in "serious misuse" of its authority to issue National Security Letters, claiming urgency in cases where when none existed
Such letters, a kind of administrative subpoena, are key to the increased surveillance.
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Courts have ruled that the government doesn't need a search warrant, which requires a judge's approval, to obtain records held by "third parties," such as hotels, banks, phone companies or Internet providers.
So the government has used National Security Letters to get the data, issuing 192,500 of the letters between 2003 and 2006, according to an audit by the Justice Department inspector general. The numbers have dropped sharply since then, but the FBI issued 24,287 National Security Letters last year for data on 14,212 Americans. That's up from a few thousand letters a year before 2001.
"It used to be the case that if the government wanted to find out what you read and what you wrote, it would have to get a warrant and search your home," said Daniel J. Solove, a law professor at George Washington University and the author of numerous books and articles on privacy law.