Discussion Guide for FBI Unbound: How National Security Letters Violate Our Privacy
In October 2001, the USA PATRIOT Act expanded several Executive Branch powers and removed the other branches’ ability to provide oversight to ensure that Americans’ rights are protected. One of those powers is the FBI’s ability to issue National Security Letters to demand that U.S. businesses:
- Hand over the private records of their customers and
- Never tell anyone except their attorney and the person who must compile the records
Any of the 56 FBI field supervisors can demand massive numbers of records on individuals from businesses, banks, telephone companies, libraries, and Internet service providers – and all without any court oversight.
Suggested Discussion Ideas
1. Post-Video Questions:
- Do you think your private records are in the FBI’s database?
- Why or why not?
- If your records are in an FBI database, do you think the FBI’s use of your personal information makes sense? If so, how do you think government access to records without showing a relationship between the records and terrorism protects us from terrorist acts?
- If not, what are some of the ways the government could protect our Fourth Amendment rights against warrantless and unreasonable searches and seizures, and still get the information they need?
2. Quotes from Video for Discussion:
“We want our federal law enforcement to be focused on genuine threats to our security and not squandered prying into the lives of innocent Americans.” — Lisa Graves
Information to Support the Discussion: When Congress passed the PATRIOT Act in 2001, it lifted the restriction that NSLs could only be used to request records about or “pertaining to” a suspected terrorist or spy. Without the restriction, anyone can be a suspect. On March 9, 2007, an audit report prepared by the Department of Justice’s own Inspector General (IG) revealed that the FBI had made more than 150,000 requests for private records in the three years from 2003 to 2005—far more than can be expected if the power were limited to suspected terrorists.
Discussion Question: Is this power justified, and if so, is it an effective use of resources that is making us safer?
“We just have these general conclusory statements that they’re very important, but there is no identification of a particular attack or a particular conspiracy that was thwarted because of these National Security Letters. And we know historically that if there are these success stories ..., it will be leaked to the press instantly. The fact that there haven’t been any such leaks is strong confirmation that there’s nothing to leak.” — Bruce Fein
Information to Support the Discussion: The Bush administration has claimed success but has provided no details, such as a terrorist plot that has been disrupted. Given the administration’s propensity to hold press conferences whenever it has any successes to report, most likely this power has not led to any successes. Furthermore, there is no evidence that information obtained about potential terrorism suspects could not have been obtained under the old standard.
Discussion Question: Do you agree or disagree with Fein’s conclusion? Why or why not?
“I had the luxury of knowing the instrument they were using was unconstitutional, and in reading the letter, I could tell that since they were concerned about something that had happened five months in the past, since they wrote the letter two months before they got around to delivering it to me, they were not in hot pursuit.” — George Christian
Discussion Question: The NSL that George Christian received is the only NSL about which we have any independent information. If that situation is typical, does it raise questions in your mind about whether this power is justified?
“How can they issue several hundred thousand National Security Letters and no one has ever heard about it? It is because every recipient has to carry the secret of being a recipient to their graves.” — George Christian
Information to Support the Discussion: In 2006, Congress changed the FBI’s NSL power so that businesses can challenge them and the gag orders that accompany them. As Lisa Graves said, given the gag order, however, there is no incentive for a business to spend its time and money challenging a request. The Justice Department can defeat a business’s attempt to lift a gag order simply by asserting to the judge that there is a national security basis for retaining the gag.
Discussion Question: As George Christian said, gag orders used to be temporary, for example, during a wiretap. Now they are permanent. What do you think of these permanent gag orders?
“Suppose you had a neighbor who didn’t like you, who called an anonymous tip on you, and the tip was completely baseless. If the FBI issued a National Security Letter for your credit report, your bank records, your phone records, your Internet transactions, the FBI would retain that information about you, even if they realized that the tip was bogus.” — Lisa Graves
Discussion Question: What is your reaction to after learning about the Investigative Data Warehouse that Lisa Graves mentioned, which is accessible by over 10,000 government employees and that holds more than 500 million records, including financial records? What sorts of misuses are possible?
“On the issue of National Security Letters, the Inspector General did show conclusively, that these powers were misused and abused by the FBI.” — Lisa Graves
Information to Support the Discussion: The same IG report revealed hundreds of abuses. The FBI’s own internal audit revealed more than 1,000 errors and abuses. Attorney General Alberto Gonzales had been told of serious abuses before he assured Congress, during the debate over reauthorization of the USA PATRIOT Act, that the FBI had not committed “one verified case of civil liberties abuse” after 2001.
Discussion Question: What kind of consequences would you impose, after learning of these abuses by the FBI? Are corrective actions sufficient (for instance, redoing paperwork, submitting late reports to Congress, and promising reform)?
“The starting point is to protect the freedom of individuals,
because the end of the state is to make individuals free and happy,
not to aggrandize the state and become an empire, and the burden is
on the government to show that this particular instrument is essential
to preserving social tranquility and protecting ourselves from violence.
And that simply was not done; that threshold was not satisfied in
creating these National Security Letters.”
— Bruce Fein
Information to Support the Discussion: Congress gave the FBI too much power and the cloak of secrecy within which to hide abuses forever. The FBI’s overuse and abuse of NSLs uncovered by the IG illustrate why checks and balances are a necessary component of our Constitution.
Discussion Question: If the FBI’s power to issue National Security Letters is to continue, what should Congress do to restore privacy protections? What kinds of actions can we do locally to give our elected representatives the will to protect our right to privacy?
End with Discussion of Positive Actions to Restore Rights
After September 11, 2001, Congress relaxed vital checks on many Executive Branch powers such as the power to issue NSLs, for a false promise of greater security. Now that we have proof that the FBI has used its NSL power excessively and has even gone beyond the very loose limits to abuse the powers, Congress needs to bring the power under much greater control and provide ongoing oversight.
Three ways to bring this about are to:
- Lobby Congress for Legislative Fixes
- Pass Local NSL Resolutions
- Educate your Peers
Lobby Congress for Legislative Fixes
Representative Jane Harman of California has introduced a House bill (H.R. 1739), Requiring Judicial Oversight for National Security Letters, that would greatly reduce the number of NSLs and would provide appropriate oversight.
H.R. 1739 would do the following:
- Require the approval of a Foreign Intelligence Surveillance Court judge or designated United States Magistrate Judge for the issuance of a National Security Letter;
- Require the Attorney General to submit semiannual reports on National Security Letters;
- Require the government to show a connection between the records sought with an NSL and a terrorist or foreign power;
- Create an expedited electronic filing system for NSL applications;
- Require the government to destroy information obtained through NSL requests that is no longer needed; and
- Mandate more robust congressional oversight, requiring semi-annual reports to both the Congressional Intelligence and Judiciary Committees on all NSLs issued, minimization procedures, any court challenges and an explanation of how NSLs have helped investigations and prosecutions.
Call your representative today and ask him or her to restore constitutional checks on the FBI’s power to issue NSLs by supporting Rep. Harman's bill, H.R. 1739, as a cosponsor. Call both of your senators and ask them to introduce a companion bill to H.R. 1739 in the Senate.
The switchboard number for Congress is 202-224-3121.
Pass Local NSL Resolutions
BORDC has learned from the powerful influence of the Bill of Rights resolutions on Congress that politicians do pay attention when residents act locally to raise public awareness on national issues. One way to show your members of Congress the strength you are building to oppose the excessive power of NSLs is to mobilize a resolution campaign. NSL resolutions are unique, because local governments actually tell the federal government they won’t comply with NSL requests that they believe are illegal.
- Visit BORDC's website for the text of NSL resolutions passed in Brighton, New York, and Eureka Springs, Arkansas.
- Organize with coalition partners and allies to ask your city council to pass an NSL resolution, as two other communities have done.
- Reach out to neighboring communities, show the video followed by discussion. As you gather small and large clusters of allies, your efforts may result in more resolution campaigns in those communities or in a larger campaign to reach your county board.
Educate Your Peers
- Host a public showing of the video in a public venue, a film series, or a school.
- Ask your public access cable station to show the video (approximately 26 minutes long).
- Organize a house party and invite your friends and neighbors.
- Order a video online ($10) from BORDC's secure online storefront.
- Download flyers, discussion guide, transcript, and more at fbiunbound.org.
- You may also order a DVD copy by mailing a check for $11 ($10 plus $1 shipping & handling) to:
Bill of Rights Defense Committee
8 Bridge St., Suite A
Northampton, MA 01060
Note: Write “FBI Unbound DVD” in the memo line.