EFF fights FBI's secret demand for private records

September 14, 2012 7:44:50 PM PDT
Here's something you don't think about when you talk on your cell phone, log onto the internet, or post messages on Facebook -- the FBI can order a company to secretly hand over your private records.

Few consumers may know it, but the FBI has the power to demand your private phone and internet records, without telling anybody about it. Now, in a rare challenge, one company is standing up for a customer who is being targeted by the FBI.

Matthew Zimmerman is an attorney with the San Francisco-based Electronic Frontier Foundation (EFF). He is now representing a phone company that was ordered by the FBI to turn over somebody's records, noting, "The FBI could be obtaining information about average citizens who have no connection to any national security investigation."

Zimmerman can't tell us the name of this company, that's a government secret. He also can't tell us whose records the FBI wants because that's a secret too. He asks, "Can the FBI, without any kind of court supervision, just decide on its own that it wants to target this American or that American?"

That is a central question in a court case quietly going on now in U.S. District Court in San Francisco. In a rare and potentially far-reaching case, the unnamed phone company is challenging the FBI's authority to secretly collect consumer data. "As far as we know this is only the second time that anyone has ever challenged the legality," Zimmerman said.

The case centers on so-called National Security Letters, or NSL's. Federal laws, including the Patriot Act, allow the FBI to use NSL's to demand companies turn over customer records and not tell anybody about it, "It keeps all the information and justification secret," Zimmerman said.

The FBI doesn't need a subpoena to get this data, or any court oversight, only need to certify that the information is "relevant" to a national security investigation.

In court documents the justice department says, "Counterterrorism investigations ordinarily must be carried out in secrecy if they are to succeed." The court hearings themselves are secret. And though 7 On Your Side was allowed to see the court documents, they are mostly made up of blacked out pages.

The FBI began using NSL's long ago, but after 9/11 they fired off an estimated 300,000 in the past nine years. The FBI obtained names, addresses, phone numbers, emails, and billing records. No one knows who got them or why.

"The information we have raises a lot of privacy concerns," said Jennifer Granick with the Stanford Law School's Center for Internet and Society. She says no one has shown proof the NSL's have weeded out terrorists and the FBI can potentially target innocent Americans, "Hundreds of thousands of people have already been swept into this net. And that means if it's not you, it could be somebody you know."

The FBI and the Justice Department declined to comment on this report.. However, the Justice Department has filed its own suit saying the phone company is endangering national security. That suit says, "The FBI continues to need the information requested in the NSL to further an ongoing national security investigation. Moreover, disclosure of the fact or contents of the NSL may result in a danger to the national security of the United States."

The case now rests with U.S. District Judge Susan Illston in San Francisco. A ruling is expected any day. The FBI would not discuss with 7 On Your Side who it may be targeting in this area, or whether these demands for records have ever caught any terrorists. We'll be reporting back on how the court rules.


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