USA - FBI bypasses denial in FISA court by writing its own search warrants

OFF THE WIRE
by Site Staff
Even the sparse amount of judicial oversight on the FBI on issues of national security can be easily bypassed or ignored completely.

The J. Edgar Hoover Building in Washington DC serves as FBI HQ.

The FBI has proven that it can legally dodge even the sparse amount of judicial checks and balances on its ability to search the records of Americans. After being denied twice in FISA Court for an order to collect records from an individual, a secret report reveals that the Bureau subsequently wrote its own order and went through with the surveillance, regardless of the court rejection.
This unilateral empowerment of the executive branch bears resemblance to offenses committed in colonial America, where British officers were permitted to write their own “writs of assistance” to search colonists for smuggled goods — one of the causes of the American Revolution and a direct inspiration for the 4th Amendment.

The FBI has proven that it can legally dodge even the sparse amount of judicial checks and balances on its ability to search the records of Americans.  After being denied twice in FISA Court for an order to collect records from an individual, a secret report reveals that the Bureau subsequently wrote its own order and went through with the surveillance, regardless of the court rejection.
This revelation was found in a recently declassified document, titled “A Review of the FBI’s Use of Section 215 Orders for Business Records in 2006″ (PDF).  It was written in 2008 by the DOJ Office of the Inspector General but not declassified until December 2014.
BACKGROUND
The issue at hand pertains to the judicial oversight — or lack thereof — on the FBI’s ability to search the papers and effects of private individuals in cases related to national security.  Typically in such cases, the Bureau goes through a special court to receive approved orders to obtain particular records on a certain party.  As the report explains, “Section 215 of the Patriot Act allows the FBI to seek orders from the Foreign Intelligence Surveillance Court (FISA Court) for ‘any tangible things,’ including books, records, and other items from any business, organization, or entity provided the item or items are for an authorized investigation to protect against international terrorism or clandestine intelligence activities” (page 1).

The National Security Letter delivered to the Library Connection in 2005. (Source: Wikipedia)

However, the report goes on to lament judicial oversight, stating that “Section 215 can be an impractical tool because of the lengthy time involved in developing, reviewing, and presenting the requests to the FISA Court” (page 55). In lieu of court approval, the FBI is empowered with a means to “obtain certain business records more quickly with much less effort.”
The speedy alternative is known as the FBI’s so-called “National Security Letters.”  NSLs are demands for records or information that are self-written by the FBI and require no probable cause or judicial oversight.
The legal authority for using NSLs originated in 1986 as part of the Electronic Communications Privacy Act, but at the time they were limited in scope to national security investigations pertaining to a foreign power.  Congress twice added extra provisions to the use of NSLs in the 1990s.  In 2001, through the USA PATRIOT Act (Section 505), the FBI’s power to issue NSLs was broadened to cover the American public on purely domestic issues, unrelated to foreign powers.  It also made it so that every FBI field office could generate them, rather than FBI Headquarters alone.
As the report admits, “NSLs can be authorized by the Special Agent in Charge in a field office and do not require FBI Headquarters, OIPR, or FISA Court approval” (page 55).
Additionally, recipients of the FBI’s NSLs may be, a the Bureau’s discretion, placed under an immediate gag order — they can be imprisoned for even mentioning that the NSL exists.
RELATED: Four librarians gagged and threatened with prison time under the Patriot Act
This prohibition on the freedom of speech is legally established under U.S. Code Title 18 § 2709 (c), which states, “no wire or electronic communications service provider, or officer, employee, or agent thereof, shall disclose to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.”
COURT REJECTION IS NO BARRIER
A series of unfortunate laws have provided the FBI with multiple alternatives for searching Americans’ papers.  Until now, it has remained unclear if these alternatives can be applied one after the other, in cases when the FBI seeks judicial authorization and is denied.
The recently declassified DOJ report contained the answer.  It admitted that even when the FISA Court rejected the Bureau’s application for a Patriot Act Section 215 Order, the FBI was still free to issue an NSL and achieve the same ends without any judicial approval.  The partially redacted section of page 65 reads:

 A.  Request for a ████████████████████████
We considered the Section 215 request for ███████████████████████████████ 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 ████████████████ 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.

What this tells us is that even the sparse amount of judicial oversight over the FBI on issues of national security can be easily bypassed or ignored completely.  This unilateral empowerment of the executive branch bears resemblance to offenses committed in colonial America, where British officers were permitted to write their own “writs of assistance” to search colonists for smuggled goods — one of the causes of the American Revolution and a direct inspiration for the 4th Amendment.

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Page 65 of the DOJ’s “Review of the FBI’s Use of Section 215 Orders for Business Records in 2006″ (PDF) shows that the Bureau can bypass FISA Court rejection using self-written National Security Letters (NSLs).