Security

Courts Checking Executive Power to Get Americans' Communications, Experts Say

Thursday’s court decision declaring the FBI’s national security letter power unconstitutional is part of a trend of courts and Congress rebelling against the executive branch acting in secrecy. At least that’s the conclusion from separate statements from Congressman Jerrold Nadler (New York) and lawyer Marc Zwillinger, who heads the Internet, Communications & Data Protection Group […]

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Thursday's court decision declaring the FBI's national security letter power unconstitutional is part of a trend of courts and Congress rebelling against the executive branch acting in secrecy.

At least that's the conclusion from separate statements from Congressman Jerrold Nadler (New York) and lawyer Marc Zwillinger, who heads the Internet, Communications & Data Protection Group at the Sonnenschein, Nath and Rosenthal law firm.

The NSL power allows anti-terror investigators to issue their own subpoenas to get at phone and internet records of people who are considered relevant to an investigation. The FBI issued some 47,000 requests for communications records in 2005 using NSLs.

"I don't think the government was expecting this at all," Zwillinger said. "This decision is part of a real theme of the government trying to operate in the dark and the courts signalling disapproval of the secret practice and wanting more sunshine and light. There is a theme here and the [Bush Administration's] preference for secrecy is coming back to haunt them.

The courts are hemming in the government in a number of decisions recently, according to Zwillinger, who points to a June Sixth Circuit decision which found that internet users do have an expectation of privacy in email stored on servers for more than 90 days.

In a written statement, Congressman Nadler, who heads the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, applauded the court's move and signalled he planned to re-write the NSL rules with more oversight built in (Nadler started this process in July with the so-called National Security Letters Reform Act of 2007.

This ruling is an affirmation of the rule of law of checks and balances, and the separation of powers,

From the beginning, I have said that unchecked executive power could lead to rampant abuse – a point affirmed by a report issued earlier this year by the Justice Department’s Inspector General.

Today’s decision is a clear signal that Congress must enact changes to the overbroad and unconstitutional NSL authority.

We must ensure that we provide law enforcement with the tools they need, consistent with our Constitution and our freedoms.

National Security Letters are also significant burdens on Internet Service Providers, according to Zwillinger who represents several ISPs.

The companies have to have a compliance team for NSLs, in addition to the staff that respond to standard criminal compliance requests.

"If this decision were to hold, this would remove a significant burden on ISPs," Zwillinger said.

Thursday's decision struck down the NSL statute based on the part of the power that allowed the FBI to prevent recipients from ever speaking about the request, even in the most general terms. The court found that it wasn't able to find that unconstitutional, and leave the power in place.

Photo: Le Chef

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