ACLU battles FBI over ISP customer data

updated 7:07 p.m. ET April 28, 2004

WASHINGTON - The American Civil Liberties Union is challenging the FBI’s use of expanded powers to compel Internet service providers to turn over information about their customers or subscribers.

A lawsuit challenging secret FBI national security letters was filed April 6 in U.S. District Court in New York but not made public until Wednesday because of its extraordinary sensitivity.

The FBI can issue national security letters, or NSLs, without a judge’s approval in terrorism and espionage cases. They require telephone companies, Internet service providers, banks, credit bureaus and other businesses to produce highly personal records about their customers or subscribers.

People who receive the letters are prohibited by law from disclosing to anyone that they did so. Because of this legal gag order, the ACLU was forced to reach an agreement with the Justice Department before a heavily edited version of the lawsuit could be unsealed.

“We believe the public has a right to know much more about this lawsuit,” said Ann Beeson, ACLU associate legal director.

Justice Department and FBI officials declined comment on the case.

The lawsuit challenges as unconstitutional one of several types of national security letters used by the FBI in counterintelligence and counterterrorism investigations.

The letters in question involve records held by Internet service providers about their clients, including billing information, kinds of merchandise the clients buy online and the e-mail addresses of the clients’ associates. The co-plaintiff in the case is identified only as an “Internet access business,” with other identification blacked out.

Patriot Act loosens rules
The ACLU lawsuit contends that the USA Patriot Act, an antiterrorism law passed shortly after the 2001 terror attacks, expanded the FBI’s power to use national security letters by deleting parts of an earlier law requiring that there be some suspicion that the subject of the probe was linked to spying or terrorism.

“As a result of the Patriot Act, the FBI may now use NSLs to obtain sensitive information about innocent individuals who have no connection to espionage or terrorism,” the lawsuit says.

An FBI guidance document to its field offices acknowledges that the Patriot Act “greatly broadened” FBI authority to use these letters in relevant investigations. But the document says that FBI supervisors must exercise care in their use, particularly because that part of the Patriot Act is set to expire in 2005 unless renewed by Congress.

“Supervisors should keep this in mind when deciding whether or not a particular use of NSL authority is appropriate,” the FBI document says.

Suit challenges veil of secrecy
The lawsuit contends that NSLs are unconstitutional because of the gag order, because a recipient has no way of challenging their validity and because the government is not forced to justify its reasons for not notifying the target about the records being sought.

The ACLU has also filed a lawsuit challenging another part of the Patriot Act that allows the FBI to obtain a variety of records and documents in terrorism and espionage cases by obtaining a warrant from the secret Foreign Intelligence Surveillance Court.

President Bush has been pushing Congress to renew all of the Patriot Act before it expires next year, arguing that it is one of law enforcement’s best tools in preventing another catastrophic terrorist attack.

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