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FBI may be checking on you, but you have no way to know

USA Today | November 9 2005

These days, Americans suspected of no wrongdoing can suddenly find themselves caught up in FBI surveillance operations.

It's as easy as saying "national security letter."

Using this little-noticed but potent tool, the FBI can demand, for example, that an Internet provider, bank or phone company turn over records of who you call and e-mail, which websites you visit, how much you spend, where you work, fly and vacation, and much more. No judge has to approve the demand, a common check required on more typical subpoenas.

You'd never learn about the secret intrusion, either. It's all classified.

The public got a rare and troubling glimpse behind this curtain when The Washington Post reported Sunday that the FBI now issues thousands of National Security Letters a year. Each can seek many records on many people.

According to The Post and government documents, the Bush administration has quietly rewritten Justice Department rules so it can keep records indefinitely, even when they prove irrelevant to an investigation. The government can also share the records broadly, enabling the FBI to build what amounts to electronic dossiers on untold numbers of Americans.

The report added to a growing bipartisan backlash against several intrusive tools in the USA Patriot Act, which was rushed into law shortly after 9/11 to help combat terrorism. Because the process is largely hidden from the public, Congress and the judiciary, there is no broad assessment of how the tools are applied. But the few cases that have struggled into the light suggest extensive, secret intrusion into the lives of law-abiding people:

• Last summer, the FBI demanded records of everybody who used a specific computer at a Connecticut library. The FBI's letter, delivered by agents, warned the recipient not to disclose the demand "to any person" - seeming to cut him off even from a lawyer. Instead of complying, the Library Connection Inc., which provides computer services, filed suit, seeking to at least protest the FBI demand in public. Months later, the case is in a federal appeals court. Most of it remains sealed, and everyone involved is gagged.

• In December 2003, after intelligence reports hinted at a New Year's Eve attack in Las Vegas, the government launched a digital manhunt there using several tools, including National Security Letters. Investigators sought to capture the names of every tourist in Las Vegas and everyone who rented a car or truck or flew into the airport over several days. Today, long after the hunt proved fruitless, the record of each visitor's hotel stay is in government data banks, The Post reported.

• Last year, after an Internet provider challenged an FBI request for records, a federal judge in New York ruled that the letter violated the Constitution by giving the FBI unchecked powers to get private information. The claim of perpetual secrecy, the judge wrote, has "no place in our open society." The case is on appeal.

No one argues with the need for far-reaching investigative tools to disrupt a terrorist plot. But such tools can become political weapons without scrutiny from judges and the public. Both are absent here.

The National Security Letters don't tell people they can challenge the demands in court. In fact, they direct people to tell no one that the FBI has sought the records. The Justice Department won't even reveal the number of letters it has issued, though it says the volume is substantially less than the 30,000 a year cited in The Post report.

Law enforcement's history of abusing some of its broad powers calls for caution. In the past, the FBI has used the Cold War or protests as excuses to spy on pacifist and civil rights groups. Today's war on terror can easily spawn new abuses.

Parts of the Patriot Act are up for renewal this fall. Congress has an opportunity - and certainly good reason - to place new limits on the FBI's powers. The war on terror doesn't have to become a war on the privacy and free speech of ordinary Americans.

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