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EPIC urges Senate to kill Patriot Act section expanding FBI's national security letters

Previous Politech message:

-------- Original Message --------
Subject: For Politech: EPIC on NSL Letters and Patriot Act Powers
Date: Wed, 21 Mar 2007 13:38:15 -0400
From: Guilherme Roschke <roschke@epic.org>
To: Declan McCullagh <declan@well.com>


	I'm wondering if you could send to Politech this letter that EPIC today
sent to the Senate Judiciary Committee.  The text is below,  and I also
include a link to the PDF, which has the proper footnotes.


Guilherme Roschke
Skadden Fellow
Domestic Violence and Privacy Project
Electronic Privacy Information Center
(202) 483-1140 x124


							March 21, 2007

Senator Patrick Leahy, Chairman
Committee of the Judiciary
United States Senate
433 Russell Senate Office Bldg
Washington, DC 20510

Senator Arlen Specter
Committee of the Judiciary
711 Hart Building
Washington, DC 20510

Dear Chairman Leahy and Senator Specter:

	The Electronic Privacy Information Center (EPIC) is writing regarding
the recent report of the Inspector General on the Federal Bureau of
Investigation's (FBI) use of Patriot Act powers, and specifically the
use of National Security Letters. We wrote to you last summer regarding
the related concern that violations of the Patriot Act had been reported
to the Intelligence Oversight Board. We believe that the IG’s report
together with the documents EPIC obtained under the Freedom of
Information Act raise serious questions as to the continuing use of
National Security Letter authority.

	National Security Letters are an extraordinary search procedure that
give the executive branch the power to compel the disclosure of certain
records without judicial oversight. In 1978 they were simply exceptions
to the Right to Financial Privacy Act, which permitted -- but did not
compel -- financial institutions to answer FBI requests.  The FBI's
ability to compel disclosure with National Security Letters was
established in 1986 with access to certain financial  and telephone
records.   In 1994, the FBI gained access to credit agency records  and
the financial records of government employees with access to classified

	In 2001 the Patriot Act significantly expanded this authority in
several ways. Letters were no longer limited to those on foreign powers
or agents of a foreign power, but simply "relevant to" or "sought for"
an investigation to protect against international terrorism or
espionage.   This includes information on people who were not subject of
the investigation.   Expanded as well was the number of people who could
authorize the letters -- from headquarters officials to the heads of
field offices.    These changes dramatically increased the number of
National Security Letters being issued from 8,500 in 2000 to  39,000 in
2003, 56,000 in 2004 and 47,000 in 2005.

	EPIC Freedom of Information Act (FOIA) requests uncovered evidence of
past FBI misuse of Patriot Act powers.  EPIC described these in a
previous letter to the Senate Committee on the Judiciary.   Documents
released to EPIC under the FOIA revealed forty-two cases in 2000-2005 in
which the FBI’s Office of General Counsel investigated alleged FBI
misconduct during intelligence activities and found these  matters
serious enough to report them to the Intelligence Oversight Board (IOB).
In our letter to the Senate Committee on the Judiciary we recommended
that Congress hold hearings to assess the allegations of unlawful
intelligence activities.

	In a letter to The Washington Post, EPIC again raised the issue that
the administration has not been forthcoming about the extent of problems
with the Patriot Act.   Our evidence suggested that several hundred
cases of violations of individual rights occurred since the passage of
the Patriot Act. There again we recommended better oversight because the
administration had not been forthcoming about problems with the Patriot Act

	On Friday March 9th, the Department of Justice Office of the Inspector
General (OIG) released a report describing misuse of Patriot Act powers.
  The report's finding of inaccurate FBI recordkeeping calls into
question FBI accounting to Congress on National Security Letters.  The
OIG's review of 77 case files found that there were 17% more National
Security Letters issued than were present in the database from which the
FBI reports to Congress.   The OIG reported that 4,600 National Security
Letter requests were not reported to Congress due to the delays in FBI
data entry.

	The report of the Inspector General also described possible violations
of provisions designed to protect individual rights. The OIG report
found 26 possible violations that were known to the FBI.  In finding
unreported Intelligence Oversight Board violations, the report only
looked at a 293 National Security Letters.  During 2003 to 2005, the FBI
issued over 140,000 such letters.  The extent of misuse is likely much
greater than this report finds.

	The Attorney General is required to "fully inform" intelligence
committees of NSL requests made under 12 USC § 3414, the Right to
Financial Privacy Act.  The Attorney General must also "fully inform"
relevant committees of requests made under 15 USC § 1681u, the Fair
Credit Reporting Act.  The director of the FBI is required to "fully
inform" Congress of "all requests" made under 18 USC § 2709(b), the
Electronic Communications Privacy Act.

	These recent development are particularly troubling in light of the
fact that the Attorney General told Congress during the oversight
hearings on Patriot Act reauthorization that he was not aware that
violations of law had occurred.

	EPIC documents and the OIG report show that the FBI exceeded its
authority to issue National Security Letters and has not been
forthcoming with information on the use of these powers.  In light of
the recent revelations, we believe that section 505, which established
the enhanced National Security Letter authority, should be repealed.


					Marc Rotenberg
					EPIC Executive Director

					Lillie Coney
					EPIC Associate Director

					Guilherme Roschke
					EPIC Staff Counsel

Posted by Declan McCullagh on Mar 21, 2007 in category privacy

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