Let the Sun Set on PATRIOT Section 505 - National Security Letters (NSLs)

So far in our EFFector series on the USA PATRIOT Act, we've focused on provisions scheduled to expire, or "sunset," in December of 2005. Section 505 doesn't sunset - but as of last week, faces a legal challenge by the ACLU on the grounds that NSLs violate the First and Fourth Amendments to the Constitution.

What NSLs Do

Imagine if the FBI could, with only a piece of paper signed by the special agent in charge of your local FBI office, demand detailed information about your private Internet communications directly from your ISP, webmail service, or other communications provider. Imagine that it could do this:

• without court review or approval;
• without you being suspected of a crime; and
• without ever having to tell you that it happened.

Further imagine that with this piece of paper, the FBI could see a wide range of private details, including:

• your basic subscriber records, including your true identity and payment information;
• your Internet Protocol address and the IP address of every Web server you communicate with;
• the identity of anyone using a particular IP address, username, or email adress;
• the email address or username of everyone you email or IM, or who emails or IMs you;
• the time, size in bytes, and duration of each of your communications, and possibly even
• the web address of every website you visit.

Finally, imagine that the FBI could use the same piece of paper to gain access your private credit and financial information - and that your ISP, bank, and any other business from which the FBI gathers your private records is barred by law from notifying you.

Now stop imagining, and meet the NSL authorized under Section 505 of the USA PATRIOT Act.

Why Section 505 Should Sunset

Before PATRIOT, the FBI could use NSLs only for securing the records of suspected terrorists or spies. Now the FBI can use them to get private records about anybody it likes - as long as it believes the information could be relevant to a terrorism or espionage investigation. And the FBI can act independently; whereas before only the Attorney General or a Deputy AG could authorize an NSL, now any local FBI office can do it. Worse, blacked-out lists of NSLs obtained through Freedom of Information Act (FOIA) requests indicate that the FBI has been using this new power aggressively, although the agency itself has been unwilling to disclose even the most basic statistical information.

The bottom line: PATRIOT NSLs represent a clear violation of your Fourth Amendment right against unreasonable search and seizure, as well as threatening online speech protected under the First Amendment.

What You Can Do About It

EFF strongly supports the repeal of Section 505, and we urge you to support it, too. We also support the Security and Freedom Ensured Act (SAFE Act, § 1709/HR 3352), which would, among other things, add section 505 to the list of provisions that will sunset at the end of 2005.